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Chapter 8: The Crime Pays Off

Davis’s fraudulent headnote of 1886 was just the beginning. Over the next 140 years, corporate lawyers would build an empire of constitutional rights on that foundation of fraud. The progression reached its logical conclusion in 2010, when five corrupt Republican Supreme Court justices—several openly on the take from rightwing billionaires and massive corporations—handed morbidly rich oligarchs the power to buy American democracy outright.

Citizens United wasn’t just about campaign finance rules or the legalization of bribing Supreme Court justices (although it encompassed both): it was the culmination of a 140-year theft. The oligarchs finally had functionally unlimited constitutional weapons to complete what the southern plantation fascists built prior to the Civil War and the railroad barons started in 1886: the destruction of the American Dream and its replacement with an all-American form of oligarchic feudalism.

The Century of Expansion

Between 1886 and today, corporations have systematically claimed every constitutional right that was written to protect human beings.

First Amendment freedom of free speech? Corporations claimed it in the 1970s and 1980s, arguing they had the right to spend money on political campaigns, advertise tobacco to children, and lie in their marketing.

Second Amendment gun rights? Weapons manufacturing corporations claimed it to challenge state and city laws that protected citizens and schoolchildren from gun violence and to help them market their deadly wares.

Fourth Amendment protections from unreasonable searches and seizures? Corporations claimed it in Dow Chemical Company v. United States (1986), arguing the EPA couldn’t use aerial photography to detect illegal cancer-causing pollution without a warrant because Dow was a “corporate person.”

Fifth Amendment protection against self-incrimination? Corporations claimed it to avoid disclosing evidence of crimes and to conceal the dangers of tobacco (which killed my brother), asbestos (which killed my father), and pesticides (among other things).

I still remember my dad coming home from the tool-and-die shop where he worked, smelling of machine oil, talking over dinner about the Machinists Union and how unions were the reason we had a middle-class life, his discussions with my mom about how they’d travel the world with the pension he was earning. Corporate constitutional rights took that all away from me and my family.

Sixth Amendment right to trial by jury? Corporations demanded it to drag things out and increase the costs to government whenever they were facing regulatory penalties.

Seventh Amendment right to a jury in civil cases? Corporations asserted it while simultaneously forcing consumers and employees into mandatory binding arbitration, denying humans the same right.

Thirteenth Amendment outlawing slavery? Private prison corporations note that the amendment still allows slavery for persons convicted of a crime, so for-profit prison slave labor has become a multibillion--dollar-a-year business that rivals the old Confederacy.

Fourteenth Amendment equal protection and due process? Corporations used these relentlessly to strike down regulations, block taxes, and prevent democratic governance.

The only amendment corporations haven’t seriously claimed is the Third (quartering soldiers in private homes), but give them time. Trump, with his increasing militarization of American cities, may still find a way to use it to make money for his billionaire buddies or install ICE agents in our houses and apartment buildings.

Virtually every constitutional right written to protect human dignity, liberty, and democracy has been converted into a weapon for corporate power.

The Destruction of the New Deal

For nearly fifty years, from 1933 to 1980, the American Dream flourished despite Davis’s corporate constitutional rights headnote. FDR’s New Deal and the regulatory framework that followed it constrained corporate power enough, in fact, to build the largest middle class in world history, the first to exceed half of the nation’s population.

The Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, and Carter administrations were able to do this because even with corporate constitutional rights on the books, the political will still existed to regulate corporations, tax the wealthy, protect workers, and invest in public goods. The memory of the Republican Great Depression was still fresh. Thanks to FDR, unions were strong. And the courts, while accepting corporate constitutional rights, hadn’t yet extended it to its logical extremes.

That all changed with the Republican Reagan Revolution of 1981.

Reagan didn’t just cut taxes and deregulate industries: following the advice of the billionaire-funded Heritage Foundation, he activated corporate constitutional rights as weapons against FDR’s New Deal framework. His administration and partisans like John Roberts (then a lawyer in Reagan’s Justice Department) encouraged corporations to challenge regulations in court, claiming their constitutional rights were being violated. His well-funded judicial appointments put corporate-friendly judges on the bench who would expand corporate rights for decades to come.

The assault on America’s democracy and our middle class was systematic. Union busting was justified by corporate property rights. Tax cuts for the wealthy were framed as protecting corporate due process rights. Deregulation was defended as preventing unconstitutional Fifth and Fourteenth Amendment takings of corporate property. Media consolidation was enabled by corporate First Amendment “free speech” claims.

Each piece of the New Deal framework that had built the world’s first widespread middle class and the functioning democracy that supported it came under attack. And corporate constitutional rights provided the legal weapons for that attack.

When states tried to protect workers, corporations sued, claiming their contract rights were being violated. When the federal government tried to regulate pollution, corporations claimed unconstitutional Fifth Amendment takings and Fourth Amendment invasions of their privacy. When communities tried to limit corporate political spending, corporations asserted First Amendment free speech protections.

The fraudulent headnote of 1886 had been a hand grenade sitting with its pin intact for decades. Reagan and his successors pulled that pin, and the American Dream began to die so quickly that by 2015 fewer than half of Americans were still in the middle class, and it took two salaries to get there.

But pulling the pin wasn’t enough. The oligarchs needed real cover. They needed to make sure that as working families watched their security disappear, they’d blame the wrong people.

Enter the deflection playbook: “welfare queens,” “law and order,” “illegal immigrants,” “taxpayers versus takers.” It was a systematic strategy specifically designed to redirect working-class anger away from the morbidly rich and toward the powerless. As I’ll detail later in the book, the same oligarchs who destroyed the American Dream became experts at making sure nobody blamed them for it.

The Democratic Tradition of Keeping Corporations out of Politics

For roughly the first half of America’s history, states understood that corporations had no business meddling in democratic elections. In 1905, for example, Wisconsin passed a law (Section 4489a, Sec. 1, ch. 492, 1905) that explicitly said: “No corporation doing business in this state shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office” (emphasis added).

Make a special note of those words “any political purpose whatsoever.” Wisconsin wasn’t hedging or creating loopholes. It was unambiguously saying that corporations have no role messing around in democracy. They don’t vote, don’t marry, don’t get hungry or sick, and can live forever, so they shouldn’t be allowed to use their economic power to twist our system of governance to their benefit and to the detriment of We the People.

Wisconsin wasn’t alone in those early fights to keep states’ democracies free of corporate control; throughout the Progressive Era and beyond, states across America passed similar laws keeping corporate money out of politics. This wasn’t even controversial back then; it simply reflected common sense and a widespread distrust of the morbidly rich.

Until five corrupt Republicans on the Supreme Court, armed with Davis’s doctrine of corporate constitutional rights, began tearing it down.

The Bellotti Decision

The march toward Citizens United really got underway in 1978 with the Supreme Court’s First National Bank of Boston v. Bellotti decision.

Massachusetts had passed a law prohibiting corporations from spending money to influence ballot initiatives unless the initiative directly affected the corporation’s business, arguing that corporate treasuries were so large compared to individual citizens’ resources that allowing corporate spending would drown out human/citizens’ voices.

Basing their argument on Davis’s fraudulent headnote from the 1886 Santa Clara County decision, the First National Bank of Boston—whose CEO wanted to put some of the bank’s money into a ballot initiative to cut taxes—sued, claiming the bank’s First Amendment free speech rights to fund political campaigns were being violated by the law.

As Ciara Torres-Spelliscy noted in 2014:

In the 1970s, Santa Clara was used to justify granting corporations the First Amendment right to spend unlimited corporate funds on ballot initiatives in a case called Bellotti. The Court relied on Santa Clara’s reading when it stated that “[i]t has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment.” Justice Rehnquist, in his dissent, questioned the wisdom of extending corporations political rights: “[T]hose properties, so beneficial in the economic sphere, pose -special dangers in the political sphere.” Again, Rehnquist could not convince his brethren.

In Citizens United, when the Supreme Court held that political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation,” they cited Bellotti. Thus, it’s only a hop, skip and a jump from Santa Clara to Citizens United.

In Sebelius v. Hobby Lobby Stores, the store chain is claiming that the corporation (and not just its proprietors) has a religious objection to providing certain types of birth control for its workers as required by the Affordable Care Act. Thus, the Court is contemplating expanding corporate constitutional rights to a new logical extreme: First Amendment religious rights. It’s no surprise that Hobby Lobby’s brief relies on Bellotti and Citizens United.

The Supreme Court, in the 5–4 Bellotti decision, sided with the corporations. Justice Lewis Powell (a Nixon appointee in 1972, a year after he wrote the infamous Powell Memo), writing for the majority, held that corporate speech deserved First Amendment protection because “[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source.”

In other words, it doesn’t matter whether speech comes from a human being or a corporation. Speech is speech.

This is absurd on its face: in a democracy, the identity of the speaker exercising First Amendment free speech rights matters enormously. When scientists say cigarettes cause cancer, that’s different from when a tobacco corporation says—to protect their profits—that cigarettes are safe.

When citizens go door to door to get signatures for higher taxes to fund schools, that’s different from when a corporation showers cash on politicians and judges to oppose those taxes and thus increase profits. When human beings express a political opinion, we’re exercising conscience, self-interest, and judgment. When a corporation funds a political opinion by purchasing advertising or showering cash on elected officials, however, it’s advancing the financial interests of wealthy shareholders and multimillionaire executives in ways that are often in direct opposition to the public interest.

But Lewis Powell’s majority opinion won, and thus—for the first time since FDR’s presidency—enshrined the corrupt principle that corporate “speech” (in other words, money, since corporations don’t have mouths) has First Amendment protection.

Justice Byron White dissented powerfully in Bellotti: “The State has a legitimate interest in regulating corporate participation in political debate in order to prevent corporate domination of the debate and to minimize the use of corporate economic power as a means of distorting the outcome.”

White understood what was at stake, but the Republican majority either didn’t understand or didn’t care.

Bellotti, then, opened the real floodgates that brought Reagan to power two years later and continue to wash over us with corporate cash today. If corporations had First Amendment rights to influence ballot initiatives (Bellotti), what about general elections for politicians? What about unlimited spending on electioneering? What about functionally purchasing political outcomes with the vast resources found in corporate coffers?

Those questions would be answered in 2010, with Clarence Thomas—himself the recipient of millions in “gifts” from rightwing billionaires—becoming the deciding vote.

Citizens United: The Oligarchs Strike Back

In the election year of 2008, a rightwing advocacy group called Citizens United produced a political hit piece on Hillary Clinton. They wanted to run it in theaters and as video-on-demand during the 2008 Democratic primary campaign to knock her out of the running.

The Federal Election Commission said the movie violated the Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold, which prohibited corporations from using their general treasury funds for “electioneering communications” within ninety days of an election.

Citizens United sued, arguing their (nonprofit) corporate First Amendment right to free speech was being violated by McCain-Feingold.

The case reached the Supreme Court in 2009, and Citizens United’s lawyers first argued narrowly that their specific video should be allowed because the time restrictions were essentially arbitrary.

But the five Republican justices—Roberts, Scalia, Kennedy, Thomas, and Alito—saw an opportunity to do something far bigger: with this single case, they could overturn a century of campaign finance law and give corporations and their morbidly rich oligarch owners the unlimited power to spend money on—and thus influence or even control—elections.

The Republicans on the Court thus asked for re-argument on a much broader question that had never been part of the case in the first place: can the government restrict any corporate political spending at all?

As a result, on January 21, 2010, the five Republicans on the Court issued (over the loud objections of the four Democrats) one of the most consequential and destructive decisions in American history.

Justice Anthony Kennedy, writing for the five-justice majority, held that the government cannot restrict independent political expenditures by corporations. Spending money to influence elections is “speech” protected by the First Amendment, he explained, and, under the logic of Davis’s headnote, corporations have the same First Amendment rights as human beings.

The Republican justices’ reasoning rested entirely on previous cases grounded in Santa Clara and its progeny. Corporations are persons. Money is the same thing as speech for a corporation, which otherwise lacks a mouth and vocal cords. Persons have First Amendment rights. Therefore, corporations can spend unlimited money to influence elections.

Kennedy, ignoring the fact that the word corporation doesn’t appear even once in the Constitution, wrote: “The Government may not suppress political speech on the basis of the speaker’s corporate identity,” and “The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker.”

Justice John Paul Stevens dissented in a ninety-page opinion that dismantled the majority’s reasoning piece by piece.

Stevens wrote: “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

Stevens understood what the majority refused to acknowledge: corporations are not people, so granting them constitutional rights perverts democracy.

But Stevens was in the four-Democratic-appointee minority, so his dissent had no legal power. The five Republican justices—several clearly on the take themselves at the time—gave the nation’s morbidly rich oligarchs exactly what they wanted: the constitutional right to buy elections.

The Immediate Impact

The impact of Citizens United was both immediate and catastrophic for democracy and has gotten worse every year since.

In the 2010 midterm elections, the first after Citizens United, outside spending by corporations and wealthy individuals more than doubled from the previous midterm. Super PACs, which could accept unlimited corporate money, spent over $300 million. By 2012, outside spending topped $1 billion. By 2020, it exceeded $3 billion, and in 2024 was about $4.5 billion.

So now we can see who were the real “speakers” in these elections: not citizens or even voters. They were almost exclusively wealthy individuals and corporations, many hiding behind layers of anonymity through dark money groups; over 100 billionaire families put over $2.4 billion into the 2024 election alone, with the vast majority going to Trump and the GOP. Corporate PACs kicked in billions more.

Following the logic of Davis’s headnote and Lewis Powell’s memo, America’s oligarchs had been given the keys to corrupt our democracy, and they set about using them with enthusiasm.

The Logical Extension

Thus, it turns out that—predictably—Citizens United was just the beginning. Once corporations got their hands on an unlimited First Amendment right to spend money on politics, other corporate rights followed.

In Burwell v. Hobby Lobby (2014), the Supreme Court ruled that closely held corporations have religious freedom rights under the Religious Freedom Restoration Act and the First Amendment. As a result, a non-living soulless corporation could refuse to provide contraception coverage to employees based on its alleged religious beliefs because it was granted religious freedom rights by five corrupt Republicans on the Supreme Court.

Justice Ruth Bader Ginsburg dissented: “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

The five Republican justices, Roberts, Scalia, Kennedy, Thomas, and Alito (the same five from Citizens United), nonetheless gave corporations religious rights. When was the last time you saw a corporation kneeling at a church altar?

McCutcheon and the Continuing Assault

In 2014, in McCutcheon v. Federal Election Commission, the Supreme Court took this bizarre logic to its next extreme when it struck down aggregate limits on individual campaign contributions. Those same five Republican justices ruled that preventing corruption wasn’t enough of a justification to level the political playing field by reining in spending.

Chief Justice Roberts wrote that the First Amendment “is designed and intended to preserve a free and open public discussion of public questions,” and—because money is now a stand-in for “speech”—that contribution limits on his, Thomas’s, and Alito’s morbidly rich patrons infringed this constitutional right to buy politicians and election outcomes.

This is, to use the technical term, nuts, but it’s now the law. When Elon Musk gave a quarter-billion dollars to Trump and his campaign in 2024, it wasn’t “speech” in any meaningful sense. It was an oligarch—the richest man in the world—using his wealth to buy influence, access, and political outcomes that favored his and his companies’ bottom lines.

Justice Stephen Breyer dissented, writing: “Where enough money calls the tune, the general public will not be heard,” but he was in the minority, so the rest of us are now being drowned out in virtually every election.

The Oligarch Democracy

We now live in what some political scientists call an oligarchic democracy, a system where wealth—both individual and corporate—determines political outcomes more than votes.

The statistics are damning. According to Princeton professor Martin Gilens, who studied 1,800 policy outcomes, because of this bizarre Republican interpretation of the Fourteenth and First Amendments, “economic elites and organized groups representing business interests have substantial independent impacts on US government policy, while average citizens and mass-based interest groups have little or no independent influence.”

In other words, what ordinary Americans want has virtually no impact on what policies get enacted. What wealthy elites and corporations want, instead, almost always determines policy outcomes.

Consider all the issues that score well above 60 percent (and often above 80 percent) on national polling: gun control, free or inexpensive college, a national healthcare system, improved public schools, cheap pharmaceuticals, affordable housing, an absolute right to unionize, the right to vote without your name being purged, a meaningful top income tax rate on the rich, getting climate change under control, breaking up monopolies, and equal rights for minorities and women.

None of these things are happening, and it’s because big-money interests oppose all of them. That isn’t democracy; it’s an oppressive oligarchy pretending to be a democracy.

And it all traces back to Davis’s fraudulent 1886 headnote. Once corporations became “persons” with constitutional rights, this horrible list of outcomes became both predictable and inevitable.

The International Dimension

And these horrors inflicted on us by a series of corrupt Supreme Court decisions and the phony doctrine of corporate constitutional rights they’re based on are no longer limited to whacking democracy in our country. America’s corporate constitutional rights doctrine has also spread into international law through trade agreements drafted with the “help” of America’s largest corporations.

Starting with the Reagan administration, which first negotiated the precursors to NAFTA and the Trans-Pacific Partnership (TPP), multiple bilateral investment treaties now give corporations the right to sue governments in private tribunals whenever government regulations hurt corporate profits. These “investor–state dispute settlement” provisions let corporations trample the will of We the People, and do it in secret.

For example, a Canadian mining company sued El Salvador for refusing to grant a mining permit that El Salvador documented would contaminate its drinking water. A tobacco company sued Uruguay for requiring life-saving health warnings on cigarette packages. An oil company sued Ecuador for regulations protecting its environment.

These aren’t really “trade disputes”: they’re corporations using treaty law—which they gained by financing politicians with their corporate “free speech”—to claim rights superior to democratic governance.

The same logic that gave corporations constitutional rights in America is now giving them treaty rights globally because corporate constitutional rights have gone international.

The world’s oligarchs aren’t just buying American democracy; they’re using our Supreme Court’s 5–4 Republican-only decisions to buy sovereignty itself.

The Court That Sold Democracy

The five Republican justices who decided Citizens United and Hobby Lobby—Roberts, Scalia, Kennedy, Thomas, and Alito—will be remembered by history as the Court that sold American democracy to the world’s most toxic and morbidly rich oligarchs.

And they didn’t even bother to do it subtly or incrementally. This power grab was done brazenly, overturning a century of precedent to give corporations and their oligarchs functionally unlimited political power.

These five justices claimed to be “originalists” who’d only interpret the Constitution “according to the Founders’ intent.” But, as history tells us, this nation’s Founders would have been horrified by the entire idea of corporate constitutional rights. They quite literally fought a revolution against corporate tyranny and then deliberately excluded corporations from any constitutional protections.

As I wrote in The Hidden History of the Supreme Court and the Betrayal of America, the “originalism” of the Roberts Court is a fraud, just like the headnote in Santa Clara. It’s a convenient fiction used to justify the destruction of our democracy.

History will not judge these justices kindly, nor should it. They’ll be remembered as the men who murdered American democracy at the request of the very oligarchs who paid to have them appointed.

The American Dream, Murdered

For my father’s generation, born during the Republican Great Depression and coming of age with World War II, the American Dream wasn’t just a slogan. FDR’s massive experiment with Keynesian economics worked; it was a reality for two-thirds of American families by 1980. A single income could support a family. You could buy a house for three times your annual salary. College was affordable or free. Healthcare didn’t bankrupt families. Retirement was secure. Children saw better opportunities than their parents.

As mentioned earlier, that reality was built by two Progressive Eras and a series of presidents who worked hard to constrain oligarch and corporate power. The first, from the 1890s through 1920, established the income tax, direct election of senators, women’s suffrage, and the first antitrust laws. The second, from 1933 through 1981, created Social Security, the right to organize unions, the minimum wage, and the regulatory framework that prevented corporate abuse.

But today, as we look at the wreckage of the middle class all around us, we can now see that Davis’s corporate constitutional rights headnote provided Reagan, the GOP, and their oligarch “donors” with the weapons to tear it all down.

Citizens United was the final blow against our democracy, leading us directly to the Trump presidency. Once corporations and their oligarch owners could spend unlimited money on elections, they could finance politicians who’d cut their taxes, deregulate their industries, crush their workers’ unions, and transfer wealth from working families to the oligarchs created by those same companies.

Chapter 7: What the Founders Knew

The colonists who fought the American Revolution and wrote our Constitution knew well who and what were the most dangerous enemies of democracy. It wasn’t just King George III; it was his British East India Company, the most powerful corporation in the world.

This is why the Constitution never mentions corporations and why our nation’s Founders would have been horrified by corporate constitutional rights. Instead of a nation ruled by oligarchs and their businesses, the Founders and Framers of the Constitution envisioned a nation of independent citizens, small farmers, entrepreneurs, and journeymen who owned the fruit of their labor and enjoyed a continually improving standard of living.

Although Hamilton’s vision was more industrial and Jefferson’s more agrarian, both saw a future for our nation, in their own ways, that we today call the American Dream.

The Supreme Court–created doctrine of corporate constitutional rights, however, is the opposite of our Founders’ vision. It now dominates America through economic, political, and legal mechanisms that allow a small, wealthy group of oligarchs to dominate the rest of us. Our Founders fought a revolution to stop—and, moving forward, prevent—exactly that.

The Founders’ Vision of Economic Freedom

The Founders didn’t just fight the Revolutionary War to seize political freedom from the British Crown as it says in most of the history books our kids read; they also wanted economic freedom from the East India Company. They wanted a nation where We the People made the decisions, rather than having them imposed on us by billionaire tech bros and giant corporations.

Thomas Jefferson explicitly wanted a nation of independent yeoman farmers, each owning enough land to support a family, with only a very few dependent on wages from a wealthy employer. This vision was small-d democratic to its core: citizens who owned their own means of livelihood couldn’t be controlled by employers or landlords. With the rights enumerated in the Bill of Rights, they could vote their consciences, speak their minds, and participate in self-governance as political equals.

Benjamin Franklin, who rose from a penniless apprentice to become one of the most successful businessmen in the colonies, embodied the promise that hard work and talent could lift anyone to prosperity, even in the early republic. His story was the original American Dream, long before that phrase even existed.

This vision of a new, free America required government to limit corporate power. If, like the East India Company, corporations could grow without limit, accumulate mind-boggling levels of wealth, and use that financial power to buy influence with politicians and thus government, they’d essentially recreate the very tyranny the Founders fought the Revolution to overthrow.

Franklin himself warned about what we today call oligarchy (aka rule by the morbidly rich). “Only a virtuous people are capable of freedom,” he wrote. “As nations become corrupt and vicious, they have more need of masters.”

Two centuries later, Franklin Roosevelt would echo his namesake Ben Franklin’s insight when he famously declared in 1936 that “necessitous men are not free men.” Both of these two men who transformed America understood that economic security was the necessary foundation of political freedom. And they both knew corporate and oligarchic control of our economy and our politics threatened to destroy both.

The Declaration’s Missing Word

The Founders weren’t just starry-eyed believers in democracy; they were also strategic. They framed the American Revolution as a fight for “natural rights” against monarchical tyranny, using a message that played very well in Enlightenment-era Europe (particularly in pre-revolutionary France), where they needed support.

Explicitly calling out the world’s most powerful corporation in the Declaration might have complicated things, so the Founders tried to make sure corporate power would never gain the same foothold in America as it had in Britain, India, and other places across the world that were groaning under the Company’s yoke.

The Constitution’s Silence

In addition to establishing the structure of our government, our Constitution also (following Montesquieu’s advice) divides power among three branches, and limits the authority of each branch.

But even with all that, the Constitution never mentions corporations. Not even once.

This was not an oversight. The Founders knew all about corporations; after all, they’d fought one to establish this nation. Which is why they deliberately chose not to give corporations constitutional status or any sorts of protection whatsoever.

James Madison, Alexander Hamilton, and others understood that corporations were useful tools for specific purposes: building a canal, establishing a bank, constructing roads and other essential infrastructure. But they were only tools to be regulated by We the People through our elected representatives, not autonomous entities with their own rights.

The Constitution grants Congress the power to regulate commerce. It gives states responsibility for chartering corporations. But it doesn’t grant corporations any rights whatsoever.

James Madison wrote to his mentor, Thomas Jefferson, on October 24, 1787 (just weeks after they’d finished writing the Constitution), about his concern for possible future corruption by “the representatives of Counties and Corporations in the Legislatures of the States much more disposed to sacrifice the aggregate interest, and even authority . . . ​over the interests of the nation.”

But, because the power to bring corporations into existence and regulate their behavior was left by the Constitution entirely to the states, he didn’t believe America would ever again have to confront a giant monopoly like the East India Company.

“Many illustrations might be given of this impossibility,” he wrote. “How long has it taken to fix, and how imperfectly is yet fixed, the legislative power of corporations, though that power is subordinate in the most compleat manner? The line of distinction between the power of regulating trade and that of drawing revenue from it, which was once considered the barrier of our liberties [by the King and the Company], was found on fair discussion, to be absolutely undefinable.”

When the Bill of Rights was added to the Constitution in 1791, it explicitly protected human rights: speech, religion, assembly, due process, and trial by jury. These were what the Founders considered “natural rights” given to us by what the Declaration of Independence calls “Nature’s God” to human beings, not artificial privileges for legal fictions called corporations.

The Founders would have ridiculed—or been horrified by—the idea that a corporation, a piece of paper, a legal abstraction, could ever achieve the same rights as human beings.

Jefferson’s Warning

Thomas Jefferson never stopped worrying about corporate power. In letter after letter, he warned about the danger of “moneyed corporations” becoming a new aristocracy.

In 1816, Jefferson wrote: “I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

Jefferson saw it coming, though, during the 1820s, after his presidency, as the country experienced explosive growth and the first steam-powered railroads emerged. Banks, manufacturing corporations, southern plantations, and the New York trading companies were accumulating dangerous levels of power. They were buying politicians, manipulating markets, and acting as if they were above democratic control.

Jefferson’s solution was strict regulation and charter revocation for corporations that violated the public interest. Like every other one of the Founders, he never once suggested corporations should have the constitutional rights he and his peers had put their lives on the line for; that would have seemed insane to him.

Jefferson and his peers understood something that over a century of corporate constitutional rights has caused us to forget: corporations exist solely at the pleasure of the people acting through state governments. We create them. We can constrain them. We can destroy them. They have no inherent right to exist, just the privileges that we grant them.

Madison’s Insights

James Madison, who drafted much of the Constitution, also understood the danger of concentrated economic power, particularly when it was combined with political influence.

In Federalist No. 10, Madison warned about “factions,” groups he defined as having interests “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” He and his colleagues in the Convention of 1787 designed the Constitution’s checks and balances explicitly to prevent any single faction from dominating our government.

But Madison could barely have imagined corporations as large as modern multinationals. The biggest corporations in 1788 America were tiny compared to the British East India Company, which Madison and the others had seen as a dangerous aberration worth fighting a war against, not a model for the future of their new republic.

Madison’s design of the Constitution assumed that economic power would be relatively dispersed and that governments would control corporations, not the other way around.

Corporate constitutional rights, established in the late 1880s, however, reversed this. Instead of government controlling corporations, a corrupt Supreme Court justice and his court reporter henchman gave corporations the constitutional weapons they’d eventually use to fight virtually any semblance of government control.

The Early State Experience

The first American states took seriously their power to control corporations. In the early republic, state legislatures granted corporate charters sparingly and with extraordinarily strict conditions. Corporate charters were required to specify the purpose of the corporation, and it couldn’t do anything else. They specified how long the corporation could exist, typically twenty to thirty years (none were established in perpetuity). They defined how much capital a company could control, where it could operate, what it could own, who could serve as directors, and what reports it had to file.

Throughout the nineteenth century, state legislatures regularly revoked charters of corporations that violated their terms or acted against the public interest. The corporate death sentence was a real possibility and was frequently invoked.

In the minds of these early politicians, this wasn’t anti-business: it was a new American democracy controlling its own artificial-person creations.

Pennsylvania, Ohio, and other states revoked dozens of corporate charters in the 1800s for various offenses: failure to serve the public interest, corruption, violation of charter terms, or simply because the legislature decided the corporation was no longer needed.

Corporations were simply viewed as tools of commerce, and when a tool broke or became dangerous, you threw it away.

What Changed

Two things destroyed this system of state-level democratic corporate control.

First, after the Civil War, states began competing for the revenue that could be had from corporate charter fees, employment, and taxes on business activities. In response to a challenge to Ohio’s corporate antitrust laws by John D. Rockefeller’s Standard Oil Trust, New Jersey pioneered “charter mongering,” offering weak regulations and low taxes to attract corporate charters. Other states followed (including Delaware, where more than half of American corporations are today chartered), and a race to the bottom began during what’s today referred to as the “Chartermongering Era.”

Second, the adoption of the Santa Clara headnote by the Supreme Court in the 1890s gave corporations constitutional rights that made state control much harder. Once corporations could claim due process, equal protection, privacy, free speech, and other constitutional rights, revoking charters became legally complex and, with the largest corporations, extraordinarily expensive.

The combination proved deadly to democracy. Weak state regulations plus corporate constitutional rights brought late nineteenth-century America corporate power and the rise of dynastic wealth, all without democratic accountability.

The Founders had designed a system to prevent exactly this outcome, but Davis’s and Field’s corporate constitutional rights destroyed it.

From the Founders to FDR

The Founders’ vision of economic freedom, of citizens owning their own labor and controlling their own destinies, didn’t die with corporate constitutional rights in the 1890s. It went underground, waiting for the right moment to reemerge.

That moment came in 1933, when President Franklin D. Roosevelt took office in the depths of the Republican Great Depression.

FDR understood what the Founders both knew and proclaimed: that economic security is the foundation of political freedom. “Necessitous men are not free men,” he repeatedly declared. People who are hungry, out of a job, or who can’t afford a doctor or a home, are not truly free, he said, no matter what rights the Constitution guarantees them on paper.

Roosevelt built on the Founders’ vision to create the American Dream in its modern form with a massive collection of nation-changing laws and government agencies he called The New Deal. They included the right to a job that paid a living wage, the right to organize and bargain collectively, the right to a secure retirement, and the right to access a basic social safety net that kept job losses or natural disasters from destroying families.

By 1981, that vision had become reality for two-thirds of American families. A single income could support a family, and you could buy a house for three times your annual salary. College was affordable, even with a part-time job (as I experienced). Healthcare didn’t bankrupt people, and, with Social Security and Medicare, retirement was finally secure.

Most of the Founders would have lauded this new America that FDR brought about and LBJ fine-tuned. Over loud Republican objections to the right to unionize, the minimum wage, Social Security, and pretty much every other New Deal and Great Society program, we finally became the nation of independent, economically secure citizens they’d envisioned, updated for the industrial age.

But corporate constitutional rights remained embedded in the law, a time bomb planted in 1886. Thus, when Ronald Reagan activated it in 1981, the American Dream began to die.

Recovering the Founders’ Vision

The Founders got it right: Corporations can be useful tools, but they must be controlled by democratic governance for the benefit of society as well as their wealthy owners. They’d have no inherent rights, only granted privileges. And when they abused those privileges, they’d be constrained or even destroyed.

The doctrine of corporate constitutional rights Davis and Field kicked off in 1886 turned this vision upside down, giving corporations constitutional weapons first designed exclusively for humans that they could use to fight back efforts at democratic control. It transformed them from servants of the public into our modern-day masters.

Undoing corporate constitutional rights means recovering the Founders’ vision, returning corporations to their proper place as tools of society, not rulers of society. It means restoring the economic freedom and affordability that makes political freedom possible.

It means, in short, rebuilding the American Dream.

But before we can rebuild our nation and our middle class, we first must understand how completely corporate constitutional rights have corrupted our democracy. The story of that corruption reached its climax in 2010, with the Supreme Court’s unscrupulous decision by five on-the-take Republicans on the Court in Citizens United. That decision, more than any others, shows us what happens when the fraud of 1886 is taken to its logical conclusion.

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Chapter 6: The First Corporate War

Every American schoolchild learns about the Boston Tea Party, and most also learn it was about “taxation without representation.”

That’s true, but hugely incomplete.

The Boston Tea Party was, in reality, fundamentally a rebellion against raw corporate power. The tea being dumped belonged to the British East India Company, then the world’s largest corporate monopoly. The tyranny being resisted was a new form of corporate tyranny corruptly backed by Company stockholder King George III’s government force.

The Founders of this nation, then, fought a revolution every bit as much against a corporation as against the British military. Understanding this history explains why they would’ve been horrified by the idea of corporate constitutional rights.

The Company That Ruled the World

The British East India Company was not like modern corporations: it was also, essentially, a private army with a corporate charter—a state unto itself.

It had its own military, its own courts, its own laws. It conquered nations, ruled hundreds of millions of people via its own appointed governors, and extracted wealth on a scale that dwarfed the British government itself.

By the 1770s, the Company controlled most of India, ran the opium trade into China, and dominated global commerce, including North America. It was more powerful than most governments. It could—and did—wage wars, negotiate treaties, and legally execute prisoners. It answered to stockholders, the King, and his Parliament, not average citizens or voters.

The Company’s stockholders included members of Parliament, British aristocrats, and the King himself. These conflicts of interest meant Company interests heavily shaped eighteenth-century British policy. When the Company wanted something, Parliament often gave it.

The Company was the original too-big-to-fail corporation. When it faced bankruptcy in 1773, Parliament bailed it out by granting it a monopoly on tea sales in the American colonies, thus outlawing the now-illegal importation of tea by independent merchants and traders.

That was the Tea Act of 1773, which American colonists correctly understood as corporate tyranny enforced by government power.

A Voice from the Revolution

I searched for years to find a firsthand account of what actually happened in Boston Harbor that cold December night in 1773. The participants in the Tea Party were sworn to secrecy for fifty years, by which time most were dead, so most of what they thought and felt was lost to history.

Then, in an antique bookstore in London, I found a treasure. It was sitting on a shelf with a bunch of old books from the early nineteenth century, a part of the store that smelled of dust, wax, and aging paper. When I saw it, I was astonished: I’d been looking for something like it for decades.

I immediately purchased an original copy of Retrospect of the Boston Tea Party with a Memoir of George R.T. Hewes, a Survivor of the Little Band of Patriots Who Drowned the Tea in Boston Harbour in 1773, published in New York by S.S. Bliss in 1834.

The book’s author, James Hawkes, interviewed George Robert Twelve-trees Hewes, who was a shoemaker and a patriot. He knew Samuel Adams and John Hancock personally. He was present at the Boston Massacre. And on the night of December 16, 1773, he was one of the men who boarded the Company’s ships.

Hawkes’s interview of Hewes, published sixty-one years after the event, is the only actual first-person account in existence of the Boston Tea Party by a participant.

Most significantly, what Hewes described to Hawkes in this little book wasn’t just a tax revolt: it was an explicit rebellion against corporate power.

The Corporate Monopoly

Many people today think the Tea Act of 1773 simply raised taxes on tea. It did not: it was actually a massive tax cut.

The purpose of the Tea Act was to give the East India Company full and unlimited access to the American tea trade so it could sell the surplus tea it had built up in its warehouses over the previous three years during a pretty severe recession.

It exempted the Company from having to pay taxes to Britain on that tea exported to the colonies, and even gave the Company a tax refund on the millions of pounds of tea it was holding in inventory.

Because the Company no longer had to pay high taxes to England and held a monopoly on colonial tea sales, it could lower its prices to undercut local importers and the mom-and-pop tea merchants in every town in America. Additionally, it allowed the British navy to intercept tea “smugglers” to the colonies, seize their ships and cargo, and imprison their crews.

It wasn’t “taxation without representation”: it was “tax breaks for giant corporations without representation” and a government-granted monopoly.

This was what specifically infuriated the colonists. They resented their colonies being used as a profit center for a multinational corporation and their small businesses no longer being able to buy tea from “pirates” (private ships bringing tea to the colonies) because the Company had an exclusive, monopolistic right of sale in North America.

“Taxation without representation” meant something specific to that generation: hitting the average person and small business with taxes while giving the most powerful corporation in the world one of the most massive tax breaks in history. It was government sponsorship of one corporation over all competitors, plain and simple.

According to Hewes, colonists were either boycotting Company tea or buying smuggled tea to avoid supporting the Company’s profits. This resistance, he said, had “greatly diminished the importation into the colonies of this commodity.”

Meanwhile, he noted, “an immense quantity of it was accumulated in the warehouses of the East India Company in England. This company petitioned the King to suppress the duty of three pence per pound upon its introduction into America.”

The King granted the petition with the Tea Act, and the Company’s ships set sail for America with their monopoly tea.

The Alarm Goes Out

A newsletter called The Alarm circulated through the colonies. One issue, signed by the enigmatic “Rusticus,” made clear the feelings of colonial Americans about England’s largest corporation:

Are we in like Manner to be given up to the Disposal of the East India Company, who have now the Assurance, to step forth in Aid of the Minister, to execute his Plan, of enslaving America? Their Conduct in Asia, for some Years past, has given simple Proof, how little they regard the Laws of Nations, the Rights, Liberties, or Lives of Men. They have levied War, excited Rebellions, dethroned lawful Princes, and sacrificed Millions for the Sake of Gain.

The Revenues of Mighty Kingdoms have centered in their Coffers. And these not being sufficient to glut their Avarice, they have, by the most unparalleled Barbarities, Extortions, and Monopolies, stripped the miserable Inhabitants of their Property, and reduced whole Provinces to Indigence and Ruin. Fifteen hundred Thousands, it is said, perished by Famine in one Year, not because the Earth denied its Fruits; but because this Company and their Servants engulfed all the Necessaries of Life, and set them at so high a Rate that the poor could not purchase them.

One and a half million people died, Rusticus wrote, in a single year, not from natural disasters but from corporate greed.

The colonists knew exactly what kind of monster they were facing. They’d seen what the East India Company did to India and were determined it wouldn’t happen to their America.

Another pamphlet, signed “Hampden,” declared: “It hath now been proved to you that the East India Company obtained the monopoly of that trade by bribery and corruption. That the power thus obtained they have prostituted to extortion, and other the most cruel and horrible purposes, the sun ever beheld.”

Philadelphia and New York Resist

The battle began in Philadelphia.

According to Hewes, “those to whom the teas of the Company were intended to be consigned, were induced by persuasion, or constrained by menaces, to promise, on no terms, to accept the proffered consignment.”

In New York, Captains Sears and McDougal, “daring and enterprising men, effected a concert of will between the smugglers, the merchants, and the sons of liberty.” The small businessmen, the entrepreneurs, and the patriots had joined forces. In many cases, like Paul Revere and Sam Adams, they were the same people.

“Pamphlets suited to the conjecture, were daily distributed,” Hewes affirmed, “and nothing was left unattempted by popular leaders, to obtain their purpose.”

The Company’s ships were turned back from Philadelphia and New York. The colonists had drawn a line.

Then the ships arrived in Boston.

The Decisive Moment

“On the twenty-eighth of November, 1773,” Hewes told Hawkes, “the ship Dartmouth with 112 chests arrived; and the next morning after, the following notice was widely circulated: ‘Friends, Brethren, Countrymen! That worst of plagues, the detested TEA, has arrived in this harbor. The hour of destruction, a manly opposition to the machinations of tyranny, stares you in the face. Every friend to his country, to himself, and to posterity, is now called upon to meet in Faneuil Hall, at nine o’clock, this day, at which time the bells will ring, to make a united and successful resistance to this last, worst, and most destructive measure of administration.’”

The colonists gathered. The Company’s local agents were urged to renounce their positions, but they refused and instead took refuge in a nearby British fortress.

A guard was placed on Griffin’s Wharf, near where the tea ships were moored. Messengers stood ready to ride to neighboring towns if the Company made any moves.

Hewes recalls the voices of the Bostonians during a hastily convened meeting in a local pub:

“Why do we wait? Soon or late we must engage in conflict with England. The opposition is formed; it is general; it remains for us to seize the occasion. The more we delay the more strength is acquired by the [British] ministers. Now is the time to prove our courage.”

A local tea seller named Rotch was asked to demand that the Governor permit the ships to return to England. The Governor refused, citing the honor of the laws and duty toward the King.

The meeting erupted. A man disguised as an Indian shouted from the gallery. The crowd dissolved in an instant and rushed to Griffin’s Wharf.

The Tea Party had begun.

That Night in the Harbor

Hewes was there. His account is vivid:

“It was now evening, and I immediately dressed myself in the costume of an Indian, equipped with a small hatchet, which I and my associates denominated the tomahawk, with which, and a club, after having painted my face and hands with coal dust in the shop of a blacksmith, I repaired to Griffin’s wharf, where the ships lay that contained the tea.

“When I first appeared in the street after being thus disguised, I fell in with many who were dressed, equipped and painted as I was, and who fell in with me and marched in order to the place of our destination.”

Between one hundred and one hundred and fifty men gathered at the wharf. They were divided into three parties, one for each ship, and Hewes was appointed boatswain of his group and sent to demand the keys to the hatches from the ship’s captain.

“I made the demand accordingly,” he said, “and the captain promptly replied, and delivered the articles; but requested me at the same time to do no damage to the ship or rigging.”

The captain of a Company ship stood by and watched as the colonists destroyed the Company’s property. He asked only that they not damage the ship itself. He knew which way the wind was blowing. Hewes continued:

“We then were ordered by our commander to open the hatches and take out all the chests of tea and throw them overboard, and we immediately proceeded to execute his orders, first cutting and splitting the chests with our tomahawks, so as thoroughly to expose them to the effects of the water. In about three hours from the time we went on board, we had thus broken and thrown overboard every tea chest to be found in the ship, while those in the other ships were disposing of the tea in the same way, at the same time. We were surrounded by British armed ships, but no attempt was made to resist us.”

Three hundred forty-two chests. Over ninety thousand pounds of tea. Enough to make twenty-four million cups. Worth over two million dollars in today’s money.

All of it destroyed to make a point about corporate power.

No Tea Shall Survive

The participants were absolutely committed that none of the East India Company’s tea would ever be consumed on American shores. Hewes describes what happened to those who tried to pocket some for themselves:

“During the time we were throwing the tea overboard, there were several attempts made by some of the citizens of Boston and its vicinity to carry off small quantities of it for their family use. To effect that object, they would watch their opportunity to snatch up a handful from the deck, where it became plentifully scattered, and put it into their pockets.

“One Captain O’Conner, whom I well knew, came on board for that purpose, and when he supposed he was not noticed, filled his pockets, and also the lining of his coat. But I had detected him and gave information to the captain of what he was doing. We were ordered to take him into custody, and just as he was stepping from the vessel, I seized him by the skirt of his coat, and in attempting to pull him back, I tore it off; but, springing forward, by a rapid effort he made his escape. He had, however, to run a gauntlet through the crowd upon the wharf; each one, as he passed, giving him a kick or a stroke.”

An old man with a large cocked hat and white wig slipped some tea into his pocket. They caught him, threw his hat and wig into the harbor along with the tea, and let him escape with “now and then a slight kick.”

The next morning, considerable quantities of tea were found floating on the water. Small boats rowed out and beat it with oars and paddles until it was thoroughly destroyed.

“We then quietly retired to our several places of residence,” Hewes concludes, “without having any conversation with each other, or taking any measures to discover who were our associates. . . . ​There appeared to be an understanding that each individual should volunteer his services, keep his own secret, and risk the consequence for himself. No disorder took place during that transaction, and it was observed at that time that the stillest night ensued that Boston had enjoyed for many months.”

The War Begins

The British Parliament responded immediately.

The Boston Port Act closed the port of Boston until the citizens reimbursed the East India Company for the tea they’d destroyed.

The colonists refused.

A year and a half later, on April 19, 1775, the colonists would again defy the Company and Great Britain, this time taking on British troops in armed conflict at Lexington and Concord, the “shots heard ’round the world.”

That war, triggered by a transnational corporation and its government’s patrons trying to deny American colonists a fair and competitive marketplace, would last until 1783.

The Declaration of Independence, written in 1776, lists the colonies’ grievances against King George III and specifically mentions taxes, troops, judges, and governors.

It never mentions the East India Company by name, but it didn’t have to. Everyone understood. The King’s tyranny and the Company’s tyranny were the same tyranny. The Company had bought the government, so fighting the King meant fighting corporate power.

The Lesson the Founders Learned

The men who wrote the Constitution had fought a corporation. They’d seen what unchecked corporate power could do. They’d watched the East India Company starve millions in India, corrupt Parliament, and try to monopolize American commerce.

And they were determined it would never happen here again.

The US Constitution contains about 4,400 words. It establishes the structure of government, enumerates powers, and limits authority.

But it never mentions corporations. Not once.

This was not an oversight. The Founders knew about corporations. They had fought one. They deliberately chose not to give corporations constitutional status or protection.

Corporations were creatures of state law, to be kept on a short leash by state legislatures close to the people. They could be chartered, regulated, and dissolved by the states and, at our country’s founding, had no rights whatsoever under the federal Constitution.

The American antipathy toward the East India Company continued even after the Revolution. When the Company tried to resume postwar trading with America, offering clothing, silks, coffee, and spices, the Americans refused. The trade war continued to and through the War of 1812.

The Founders had not forgotten. And they made sure corporate power would never gain the same foothold in America that it had held in the colonies.

Or so they thought.

A century later, a court reporter and a corrupt justice would undo much of their work with a few strokes of a pen.

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Chapter 5: The Seventy-Year Legal War

The story of the battles both for and against corporate constitutional rights didn’t begin in 1886. For seventy years before the Santa Clara non-decision, corporations fought a relentless legal war to gain access to the same constitutional rights the Founders and Framers intended exclusively for humans. They lost battle after battle until, with Davis and Field, the railroad oligarchs finally found a way to win by fraud.

Once we understand this, it’s easy to see that corporate constitutional rights were never an accident or a misunderstanding: the doctrine was, instead, the result of a sustained, deliberate campaign by morbidly rich interests to acquire constitutional weapons they could use against the “mob rule” of democratic governance. The railroad and other American oligarchs tried honest arguments for seven decades, but, when that failed, they turned to fraud.

This history also shows exactly what the oligarchs were fighting against: virtually every reform that would later build—and today sustains—the American Dream and the social democracy that made it possible.

The Early Republic and Corporate Charters

Queen Elizabeth I created the first modern limited liability corporation—the British East India Company—in 1601, but by the time America was founded, corporations were still rare and tightly controlled. The Founders had fought a revolution against the British East India Company’s economic and legal tyranny, and they weren’t about to allow that kind of corporate power in their new republic.

In the early 1800s, corporations were only created by special acts of state legislatures. Each charter was a custom document specifying exactly what the corporation could do, how long it could exist, and what restrictions on its behavior applied.

A corporation chartered to build a toll bridge, for example, couldn’t just suddenly decide to buy or open a bank. A textile mill corporation couldn’t invest in railroads. Charters specified purpose, duration, capitalization, and governance. They could be revoked if the corporation “violated the public interest,” an event called “the corporate death penalty,” and frequently were dissolved this way.

That wasn’t capitalism being stifled: it was democracy controlling its own creations for the benefit of the nation and its citizens.

As Thomas Jefferson warned in 1816: “I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

The Founders understood what we seem to have forgotten: corporations are not natural beings like you and me. Instead, they’re legal fictions created by government to serve public purposes. By the standards of the Declaration of Independence (“Life, liberty, and the pursuit of happiness”) and the Constitution, they have no inherent rights, only privileges granted them by We the People via the state governments that chartered them.

The First Corporate Rights Claims

As corporations grew larger and more powerful in the 1830s and 1840s, they began testing the boundaries of state regulation. Could they claim constitutional protections? Could they escape state oversight?

The answer, initially, was “no” to both questions.

In The Trustees of Dartmouth College v. Woodward (1819), the Supreme Court ruled that a corporate charter was a contract that states couldn’t just arbitrarily revoke; there had to be cause. This gave corporations “artificial personhood” capabilities and some stability, but it didn’t make them persons with constitutional rights.

Chief Justice John Marshall, writing for the Court in that case, emphasized that corporations are merely “artificial beings, invisible, intangible, and existing only in contemplation of law.” They possessed only those properties that their charter granted them by the state in which they were incorporated.

That early decision protected contract rights, not corporate constitutional rights.

Through the 1830s and 1840s, corporations (mostly railroads, but also banks and trading companies) brought case after case claiming they deserved the same constitutional protections as human beings. They lost consistently. Courts understood the difference between natural persons and artificial legal entities.

The Civil War Changes Everything

The Civil War transformed America’s economy. Prior to 1860, most corporations were small, local, and tightly regulated. After 1865, massive national corporations emerged in part because of federal subsidies, especially the railroads to which Lincoln had given tens of millions of acres of federal lands.

These new national railroads weren’t like earlier corporations. They operated across state lines, employed thousands, and controlled vast wealth. And they had every incentive to escape state regulation as a way of jacking up their profits.

The Fourteenth Amendment, ratified in 1868, gave them the opening they’d been searching for.

The Amendment’s framers never mentioned corporations. The congressional debates around it focused exclusively on protecting the recently freed slaves. Every speech, every argument, every explanation we can find on the record concerned racial equality and civil rights for Black Americans.

But the amendment used the word “person” rather than “natural person” or “citizen.” And that got the corporate lawyers’ attention.

The Fourteenth Amendment Campaign

Starting in 1868, corporations launched a systematic campaign to claim Fourteenth Amendment rights as railroad after railroad brought cases arguing that state regulation violated their rights as “persons” under the amendment.

In The Railroad Tax Cases (1872), which Stephen Field had brought to the Court from the 9th Circuit, the railroad corporations argued that “discriminatory taxation” violated their Fourteenth Amendment rights. They (and Field) lost.

In Munn v. Illinois (1877), grain warehouse companies (with Field’s agreement) argued that state regulation of their rates violated their Fourteenth Amendment rights to the sanctity of property. They also lost.

Chief Justice Morrison Waite, writing for the majority in Munn, firmly rejected corporate constitutional rights: “When private property is devoted to a public use, it is subject to public regulation.”

The Court consistently ruled that the Fourteenth Amendment was meant to protect the recently freed enslaved people, not big corporations. Regulation of corporate activity for the public good was entirely constitutional.

But the corporations kept trying. They had, after all, virtually unlimited legal budgets so they could afford to lose ninety-nine cases if they won the hundredth. And they knew that the composition of the Court changed over time and may one day become more amenable to their arguments.

What the Oligarchs Were Fighting Against

To understand why corporations fought so hard for constitutional rights, you first have to realize what they were frantically fighting against: the First Progressive Era and everything it promised to working-class people.

By the 1870s and 1880s, democratic grass-roots movements were challenging corporate power across America. States were responding with laws that would have seemed impossibly radical just a generation earlier, limiting both corporate activity and money in politics.

The income tax was being debated repeatedly during that era, and would eventually become the Sixteenth Amendment in 1913, giving the federal government the ability to tax corporations as well as individuals and fund public infrastructure and benefits. (Prior to that, most federal funding came from tariffs.) Corporate lawyers fought the income tax relentlessly, arguing that it violated corporate property rights.

Direct election of senators was also being demanded back then; they used to be appointed by the states. State legislatures, however, had been notoriously corrupt, with corporate money buying Senate seats, leading to multiple bribery scandals (the most notorious was in Montana in 1899). The Seventeenth Amendment in 1913 would give that power to voters instead. Corporate interests fought it right to the bitter end, because they’d largely perfected the dark art of bribing state legislators.

Labor protections were also spreading nationwide. States were limiting working hours, requiring safety standards, and prohibiting child labor. Corporate lawyers fought every one of these laws, unsuccessfully claiming they constituted unconstitutional interference with property rights and freedom of contract.

In response to national outrage about the growing concentrations of wealth at the top of the corporate world, antitrust laws were being proposed. The Sherman Antitrust Act would pass in 1890, giving the federal government the power to break up monopolies. Corporate lawyers spent the next century trying to gut it before five corrupt Republicans on the Supreme Court helped them out in the twentieth century.

In short, corporations were battling virtually everything that would later build the American Dream: every protection for workers, every tax on wealth, and every regulation of corporate behavior. They opposed, in other words, pretty much any and all democratic reforms that threatened their oligarchic power.

But they needed constitutional weapons to fight back if they wanted to be able to rise above state laws and regulations; and corporate constitutional rights, turning on the Fourteenth Amendment, would give them exactly that.

Roscoe Conkling’s Conspiracy Theory

In 1882, a curious event occurred that would later fuel claims about the Fourteenth Amendment’s “true” purpose that last to this day.

Roscoe Conkling, a former US senator who’d served on the joint committee that drafted the Fourteenth Amendment, appeared as a witness on behalf of the railroads before the Supreme Court in the 1885 San Mateo County v. Southern Pacific Railroad Company case, another Stephen Field decision in the 9th Circuit that came before the Supreme Court with an “equal protection” argument. Conkling was now a high-priced corporate lawyer, and the railroad paid him handsomely to testify.

Conkling presented what he claimed was a “secret journal” from the joint committee’s congressional deliberations. This supposed journal, Conkling argued, proved that the committee had intentionally used the word “person” instead of “citizen” or “natural person” to specifically include corporations.

It was a lie.

No such secret journal existed. Conkling had manipulated a handful of notes from the deliberations to make it appear the committee had discussed corporate rights. But later historians found the committee’s actual debates, thoroughly documented in the public record, and those discussions focused exclusively on protecting freed slaves.

Conkling’s “conspiracy theory” brazenly further claimed that the Fourteenth Amendment’s framers had secretly intended to protect corporations but pretended it was about racial equality just to get it passed.

This was also nonsense. The framers of the amendment discussed their intentions publicly and repeatedly; there was no secret corporate protection agenda.

But Conkling’s argument gave that era’s corporate lawyers the talking point they needed. Even though the Supreme Court didn’t decide San Mateo on constitutional grounds, Conkling’s conspiracy theory persisted. Some corporate attorneys still argue it today.

The Pattern of Defeat

Through the 1870s and into the early 1880s, corporations fought and lost case after case claiming Fourteenth Amendment rights:

Munn v. Illinois (1877): Lost. States can regulate businesses affected with a public interest.

Railroad Commission Cases (1886, decided just before Santa Clara): Lost. States can regulate railroad rates.

Stone v. Farmers’ Loan & Trust Co. (1886): Lost on the constitutional question, though they won on other grounds.

The pattern was clear. The Supreme Court justices (other than Field) weren’t buying the corporate lawyers’ constitutional rights arguments. The Fourteenth Amendment meant what its framers said it meant: protection for freed slaves, not protection for soulless corporations that were mere creations of state law.

Corporate lawyers determined they needed a different strategy, as they couldn’t win by honest argument. So, they stopped trying to win that way and went straight to the Court’s reporter, J.C. Bancroft Davis.

The Santa Clara End Run

The genius of the Santa Clara headnote strategy, if you can call fraud genius, was its indirection.

The railroad didn’t need to win on the constitutional question: they just needed to get inserted into the official record that the chief justice claimed the Court had already decided the question.

J.C. Bancroft Davis’s headnote accomplished this perfectly. Future courts would cite Santa Clara’s headnote without ever reading the actual decision. They’d rely on Davis’s summary, which fraudulently claimed the Court had ruled on corporate constitutional rights.

The seventy-year legal war for corporate rights ended not with a victory in court but a sleight of hand in the court reporter’s office.

After 1886, the record shows, corporations stopped losing Fourteenth Amendment cases because courts now cited the Santa Clara headnote as establishing that corporations were persons. The precedent was manufactured by Davis, of course, but it became precedent nonetheless the first time another decision cited it.

That first happened in 1889, in Minneapolis & St. Louis Railway Company v. Beckwith, when the Supreme Court itself cited the Santa Clara headnote in ruling for corporate constitutional rights without questioning whether the earlier case had actually decided that issue.

The lie had become the law. The seventy-year war was over. The corporations had won.

Not through honest argument. Not through democratic process. Through fraud.

The Progressive Era Fights Back

Corporate constitutional rights didn’t stop the First Progressive Era: it just made the fight a hell of a lot harder.

Between 1890 and 1920, reformers won remarkable victories despite these repeated corporate constitutional claims. The Sherman Antitrust Act passed in 1890. The income tax became constitutional through the Sixteenth Amendment in 1913. Direct election of senators came through the Seventeenth Amendment in 1913. Women won the right to vote through the Nineteenth Amendment in 1920.

Over shrieks of outrage from corporate lawyers, states passed worker protections, food safety laws, and regulations on corporate behavior, particularly with regard to their participation in politics.

Muckraking journalists gleefully exposed corporate abuses, outraging working people. Teddy Roosevelt busted trusts (monopolies) to the delight of small businesses. Woodrow Wilson created the Federal Reserve and the Federal Trade Commission to take control of the economy away from private banks and corporations and give it both stability and credibility.

But at every step, corporate lawyers used their new constitutional rights defined in the Santa Clara headnote to fight back. They challenged the income tax as a taking of property. They challenged hundreds of labor laws as violations of freedom of contract. They challenged antitrust enforcement as interference with corporate due process rights.

Sometimes they even won. In Lochner v. New York (1905), the Supreme Court struck down a state law limiting bakers to working sixty hours per week, ruling that the law violated the “liberty of contract” protected by the Fourteenth Amendment.

The Lochner Era, as it came to be called, saw both state and federal courts successfully and repeatedly striking down progressive legislation for decades—minimum wage laws, maximum hour laws, child labor restrictions, worker safety requirements. All were challenged as violations of the corporate Fourteenth Amendment constitutional rights allegedly granted by Santa Clara, and the Court went along with the corporate lawyers in nearly every case.

The fraudulent headnote of 1886 had given corporations a weapon they would use against every democratic reform for generations, including right up to this very day.

The Seeds of the Second Progressive Era

The First Progressive Era, however, laid the groundwork for something even bigger. Despite corporate resistance, it established a set of core principles that would again flower in the 1930s with President Franklin D. Roosevelt’s New Deal.

The income tax created a mechanism to fund public goods and redistribute wealth. The direct election of senators made the federal government more accountable to voters. Antitrust laws established the principle that corporate power could be constrained by government. And labor protections, though often struck down by courts (including to this day), established the principle that workers had at least some rights.

When the Republican Great Depression hit in 1929 and FDR was elected to solve the problem in 1932, these foundations were ready. Franklin Roosevelt built on them to create the New Deal, launching a Second Progressive Era that would finally make the American Dream real for a majority of Americans, at least until Reagan and the GOP took a meat axe to it.

But corporate constitutional rights remained, as the fraudulent pre-cedent of Santa Clara was never overturned or, frankly, even carefully examined. It sat in constitutional law like a dormant virus, waiting for the right conditions to reactivate.

Those conditions came in 1981, when Ronald Reagan took office and began the systematic dismantling of almost everything the Progressive Eras had built.

To clearly see how we got from 1886 to today, we first must know what the Founders actually believed about corporations. Their vision, it turns out, was the polar opposite of corporate constitutional rights. And recovering that vision is essential to undoing Davis’s and Field’s crime.

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Chapter 4 The Mastermind: Supreme Court Justice Stephen J. Field

If J.C. Bancroft Davis was the triggerman, then Justice -Stephen Johnson Field was the mastermind behind the corporate theft of constitutional rights. He’d spent three decades on the Supreme Court, building the intellectual infrastructure that would transform corporations into constitutional persons.

We must understand Justice Field to clearly see how democracy was hijacked by the oligarchs of that era. But more than just that, understanding Field also reveals the ideology behind the hijacking. This wasn’t just a case of corruption or greed, although there was plenty of both. This was, instead, a vision of America fundamentally opposed to the Founders’ and Framers’ vision of America and explicitly at odds with the possibility of creating a thriving middle class.

Field, like the railroad oligarchs to whom he was beholden, believed that property rights always trumped human rights. He believed the wealthy deserved constitutional protection from what John Adams called “the rabble”: the democratic majorities, the “common people.” He believed that workers organizing for better wages, farmers demanding fair treatment from the railroads they needed for their survival, and states regulating corporate behavior were all forms of tyranny against the morbidly rich of his day.

His vision was thus essentially feudal: a small class of white male property owners should rule over everyone else, protected by constitutional rights that the democratic majority could never touch.

Corporate constitutional rights were the weapon he—and the oligarchs close to him—chose to make that vision real.

The Gold Rush Justice

Stephen Field arrived in California in 1849, just as gold fever swept the territory. He wasn’t, however, looking for gold in the ground. He made his considerable fortune in lawyers’ fees, land speculation, and by exploiting and supporting raw political power.

Field established himself as a lawyer in Marysville, then became the alcalde for the town, a title encompassing the combination of mayor, judge, and local potentate inherited from California’s Mexican period. He wielded power arbitrarily, frequently jailed his more outspoken critics, and almost always ruled in favor of those clients who paid him well.

When California became a state, Field joined the state legislature, then became a justice on the California Supreme Court. He was ruthless, ambitious, and utterly convinced that rich people and their corporations were the only ones that really mattered.

In 1863, President Lincoln appointed Field to the US Supreme Court. It was a political appointment, as Lincoln needed California’s support and Field’s Democratic credentials to help balance the Court (with the bonus that he wasn’t, like the Southern Democrats, a slaveholder).

Lincoln would later regret his appointment, as Field quickly became one of the most consequential justices in American history, and not in a good way.

The Ideology of Oligarchy

Field brought to the Supreme Court a fully formed ideology that would reshape American law: corporations were property, property was sacred under the Constitution, and any democratic attempts to regulate or even “excessively” tax property were simple tyranny.

This wasn’t capitalism in any way Adam Smith would have recognized. Smith, in both Theory of Moral Sentiments and Wealth of Nations, advocated competitive markets and warned against monopolies that conspired against small competitors and the public. Field, on the other hand, pushed for corporate power and saw democratic regulation of business activity as the enemy.

Field’s ideology came from his experience in California. He’d seen and admired vigilante justice, rough-and-tumble mining camps, and the rapid accumulation of massive fortunes. As an attorney, he’d watched the railroad oligarchs build an empire, and as a judge had become invested in their success.

Most importantly, he agreed with that era’s oligarchs (who were often murdering labor leaders) that the wealthy deserved protection from the democratic majority. The “mob” couldn’t be trusted with power, particularly the power to tax or regulate the railroads. Property owners, especially corporate property owners, needed constitutional shields against populist politicians.

The Fourteenth Amendment, he hoped, would finally give Field his opportunity to repay decades of largesse from the nation’s richest men.

Field’s War Against the Emerging Middle Class

Field wasn’t just pushing corporate rights in the abstract. He was waging war against the emerging American Dream even before it could be named or fully take shape.

During Field’s time on the Court, workers were organizing into unions, demanding living wages that would allow them to support families, buy homes, and give their children opportunities they never had. Farmers were forming cooperatives to escape the stranglehold of railroad monopolies. Small businesses were fighting against corporate consolidation that threatened to crush them.

States responded positively to these deeply popular movements by passing laws limiting working hours, requiring safe working conditions, preventing monopolistic practices, and taxing corporate wealth to fund public schools and infrastructure.

Every one of those laws threatened Field’s oligarchic vision of America. Every one weakened the power of the oligarchs and gave it to democratic majorities. Every one moved America closer to what FDR would later call a nation where poor and working class “necessitous men” could become “free men.”

Field saw all of this as a “dictatorship of the proletariat,” a dangerous move toward the hot new idea of Marxism that was then sweeping the world’s intelligentsia. He believed that workers demanding fair wages was simple theft from property owners. He saw states regulating corporations as an unconstitutional interference with property rights and the democratic majority asserting control over economic life as mob rule.

Corporate constitutional rights were Field’s legal weapon against the American Dream before it could fully emerge.

Rewriting Reconstruction

The Fourteenth Amendment was meant to protect freed slaves, but Field believed it could be used to a different purpose: protecting corporations from state regulation.

Starting in the 1870s, Justice Field began writing dissents in both the 9th Circuit and the Supreme Court arguing that corporations were persons under the Fourteenth Amendment. He lost those arguments repeatedly as the majority of the Court understood what the Fourteenth Amendment was actually for, and several—including Waite—even occasionally ridiculed Field as a “man obsessed.”

But Field was patient. He knew that the Supreme Court’s composition would change with time. He knew that repeating an argument often enough can make it seem reasonable. And he knew that corporate money would fund challenges to every regulation, every tax, and every democratic attempt to constrain corporate power, and he wanted that money behind him and his presidential aspirations.

Field was playing the long game, building an intellectual framework that future courts could adopt.

The Slaughterhouse Dissent

In 1873, in the Slaughterhouse Cases, Field wrote one of the most important dissents in American legal history. It was important not because it was right, but because it laid the groundwork for what would later be called corporate constitutional rights.

The case involved the state of Louisiana granting a statewide monopoly to one single slaughterhouse in New Orleans owned by one of that state’s wealthiest men. Small and independent butchers sued, claiming their Fourteenth Amendment “equal protection” rights were violated.

The majority on the Supreme Court ruled against the independent butchers by throwing out the Fourteenth Amendment argument. Justice Samuel Miller, writing for the Court, explained that the Fourteenth Amendment was “designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons.” It wasn’t, in other words, ever meant to revolutionize federal–state relations or create new property rights.

Field dissented furiously. He argued that the Fourteenth Amendment protected broad economic rights, including the right to pursue any lawful occupation without government interference.

This argument of Field’s was eventually adopted by the Court and became known as “substantive due process,” the idea that the Due Process Clause of the Fourteenth Amendment protects not just fair procedures, but also certain fundamental rights from government interference.

It was a radical reinterpretation of the Fourteenth Amendment. And it was exactly what corporations needed to argue for constitutional protection from regulation.

Building the Case

Through the 1870s and 1880s, Justice Field kept pushing. In dissent after dissent, opinion after opinion, he argued that corporate property rights deserved constitutional protection, that corporations were persons, and that democratic regulation was, to use his word, tyranny.

The railroad oligarchs noticed and jumped aboard, funding legal challenges designed to reach Field’s Court with a fact pattern that would fit with his worldview. They hired the best lawyers money could buy and cultivated relationships with sympathetic judges.

Field was thus their champion on the Court. He socialized with railroad executives, owned railroad stock, and traveled on private railroad cars. The conflicts of interest were obvious and enormous, but in that era were frequently overlooked.

In a later time, Field would have been forced to recuse himself from cases involving the railroads. But in the 1880s, much like with today’s Roberts Court, judicial ethics were whatever the Court’s judges said they were. Field, therefore, had no intention of recusing himself from the cases that mattered most to his ideology, his future political ambitions, and his investment portfolio.

The Santa Clara Set-Up

When the Santa Clara case reached the Supreme Court in 1886, Field saw his moment.

The case wasn’t perfect, by any means. The legal issues were technical and boring, involving fence valuations and tax procedures. But it involved the railroad, whose very well-paid lawyer Sanderson was willing to argue the Fourteenth Amendment, and it thus gave Justice Field an opportunity to finally, after all those years of effort, establish a legal basis for corporate constitutional rights that would endure for more than a century.

Field’s biggest problem, however, was that the majority of the Court didn’t agree with him. They were skeptical of his Fourteenth Amendment arguments and generally preferred to rule on narrow grounds and—unlike today’s corrupt Republican-dominated Court—generally tried to avoid constitutional questions altogether.

Field, then, couldn’t control the majority. But he could influence the Court’s official reporter.

J.C. Bancroft Davis and Stephen Field shared more than ideology. They were friends who socialized in the same circles. They both had financial interests in railroad stock. And they both believed corporations and the oligarchs who owned railroads deserved constitutional protections that went far beyond those applied to average working people.

Did Field simply come out and tell Davis to write a fraudulent headnote? While possible, the historical record doesn’t prove a direct conspiracy. But it does show how opportunity, alignment of interest, and mutual benefit all came together that day in 1886.

What we know for certain is that after Davis wrote the headnote, Field never objected. In subsequent cases, in fact, Field cited the Santa Clara headnote as proof positive his Court had established corporate constitutional rights. He’d gotten what he wanted, even if he couldn’t pull it off through the Court’s actual decision.

The Long Shadow

Field stayed on the Supreme Court until 1897, becoming the second--longest-serving justice in American history at that time. His final years on the Court were marked by senility and bitterness, but his ideology had won.

By the late 1890s, the Court was regularly citing Santa Clara as pre-cedent for corporate constitutional rights. Field’s dissents became majority opinions, and his radical reinterpretation of the Fourteenth Amendment became settled law.

And the freed slaves for whom the Fourteenth Amendment was written? By 1896, in Plessy v. Ferguson, the Supreme Court ruled that “separate but equal” was constitutional, setting up more than a half-century of legal discrimination and apartheid.

Justice Henry Billings Brown’s opinion in that case acknowledged that the post–Civil War amendments made Black people citizens and forbade states from denying equal protection, but insisted the Fourteenth was meant to secure legal/political equality, not to abolish “distinctions based upon color” or to require “social equality.”

The Fourteenth Amendment—which was supposed to protect Black Americans from discrimination—was instead used to uphold segregation.

Meanwhile, corporations flourished under Fourteenth Amendment protection. By 1900, the Supreme Court had ruled in favor of corporations claiming Fourteenth Amendment rights in dozens of cases. The amendment meant to serve freed slaves now mainly served to free corporations from democratic control by local, state, or even agencies of the federal government.

Field’s transformation of American law was complete. The oligarchs had won, and democracy and the emerging American middle class had lost.

And it all traced back to that one fraudulent headnote in that one infamous 1886 case.

Field’s Feudal Vision Realized

Field died in 1899, two years after leaving the Court. He’d spent thirty-four years as a Supreme Court justice. He’d reshaped American constitutional law more profoundly than almost any other jurist in history.

And he’d done it in service of a feudal vision that most Americans would have rejected if they’d understood it clearly.

His vision was the opposite of the American Dream that promised that hard work would be rewarded, ordinary people could build secure lives, and children would have more opportunities than their parents. Field’s vision, instead, promised that the wealthy would stay wealthy, the powerful would stay powerful, and democratic majorities would be powerless to change anything.

For fifty years after Field’s death, his vision seemed to triumph. The Gilded Age gave way to the Roaring Twenties, another era of oligarchic excess. Corporate power again grew unchecked, and wealth again concentrated at the top. Workers were again crushed when they tried to organize, and the American Dream began to seem like a cruel joke.

Then came the Great Crash of October 1929 and the Republican Great Depression. Field’s America, the oligarchs’ America, had collapsed under the weight of its own contradictions, excesses, and naked thefts.

President Franklin D. Roosevelt built a new and different America on the wreckage, where workers could organize, corporations were regulated for the public good, and the morbidly rich paid their fair share. We became, for the first time in the history of the world, a country where two-thirds of families could achieve the middle class by 1980.

But Roosevelt couldn’t undo Justice Field’s constitutional legacy empowered by court reporter Davis’s headnote. Corporate constitutional rights remained embedded in the law, a then largely dormant weapon waiting to be activated. Thus, when Ronald Reagan’s “Revolution” began in 1981, that weapon was turned against everything Roosevelt had built, and Donald Trump and the GOP are doubling down on it today.

After forty-plus years of Republican and neoliberal Democratic rule, Field’s feudal vision is ascendant again today. Three men own more wealth than the bottom half of America combined. Corporations claim constitutional rights to buy elections, block regulations, and crush workers. And the American Dream is dying.

Stephen Field would be pleased, if not giddy: this is exactly what he wanted.

But Field and Davis didn’t invent the idea of corporate constitutional rights out of nothing. Instead, they built on decades of corporate legal strategy. To understand how deeply rooted this fraud really is, we need to take a quick look at the seventy-year legal war that preceded Santa Clara.

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Chapter 3 The Triggerman: J.C. Bancroft Davis

Who was J.C. Bancroft Davis? And why would he commit such an audacious fraud?

The answer lies in his connections to the railroad oligarchs, his own ambitions within America’s elite power structure, and—most importantly—whose interests he was really serving when he wrote that fraudulent headnote.

Davis wasn’t just helping the Southern Pacific Railroad win a tax case. He was helping an entire class of oligarchs acquire a constitutional weapon they could use against democracy itself, against the Progressive Era reforms that threatened their power, against the labor movement that demanded dignity for workers, and ultimately against every democratic effort to build what would later be called the American Dream.

The Court Reporter

John Chandler Bancroft Davis was born into privilege in 1822. His father was a prominent Massachusetts politician. Young Bancroft—he went by his middle name—attended Harvard, studied law, and entered a career that would take him through journalism, diplomacy, and ultimately to the Supreme Court.

By 1883, when he became the Supreme Court’s Reporter of Decisions, Davis was sixty-one years old. He’d served as Assistant Secretary of State, negotiated treaties, argued cases before the Supreme Court, and moved comfortably in the highest circles of American power.

He was also heavily invested in railroads, and had briefly been the president of a small railroad on the east coast.

Davis owned railroad stock, had financial relationships with railroad companies, and his social circle included railroad executives and oligarchs. When he took the job as Supreme Court Reporter, he brought those connections with him.

The Reporter’s job was supposed to be purely administrative: record the decisions, write brief summaries, publish the volumes. It wasn’t supposed to involve making law.

But Davis saw an opportunity.

A Man of His Class

To understand Davis, you have to understand the world he inhabited. The 1880s were the Gilded Age, a time when a small number of oligarchs controlled vast portions of America’s wealth while most workers lived in poverty, children labored in factories, women had no rights or political power, and democratic governance was routinely corrupted by corporate money.

Davis moved in the circles of those oligarchs. He dined with them. He invested with them. He shared their worldview: that property rights were sacred, that democratic regulation was tyranny, that the wealthy deserved protection from the masses.

This wasn’t unusual for men of his class. What was unusual, though, was his position. As the Supreme Court’s official reporter, Davis had access to the official record of constitutional law. He could shape how decisions were understood, cited, and applied.

And the railroad oligarchs and their man on the Court, Stephen J. Field, needed someone in exactly that position. Whether they recruited him explicitly or whether he simply understood what was expected of a man in his station, Davis delivered.

The Mysterious Letter

In 1886, after writing his fraudulent headnote but before publication, Davis wrote to Chief Justice Morrison Waite. The letter has been preserved in Waite’s papers at the Library of Congress, and I don’t think anybody had seen it in a century before I initiated an investigation and discovered it in a dust-covered file.

Davis wrote: “I have a memorandum in the California Cases Santa Clara County v. Southern Pacific R.R. Co. as follows. In opening, the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the Judges were of the opinion that it does.”

Davis was asking Waite to confirm that his summary was accurate, that Waite had indeed announced from the bench that corporations were persons under the Fourteenth Amendment, and that all the justices agreed.

Waite’s response, also preserved in his papers, is remarkable.

Waite wrote back: “I think your mem. in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision.”

And there it is. Waite confirmed that something was said before argument began, but he also noted that the Court “avoided meeting the constitutional question in the decision.”

In other words, even if Waite made some random comment before oral arguments began (and we’ll examine whether he really did in a moment), the Court’s actual decision explicitly did not rule on corporate constitutional rights other than to reject them as the basis for a decision.

Waite wrote that he left it to Davis “to determine whether anything need be said about it [the corporate constitutional rights argument] in the report.” That’s a remarkable delegation of authority. The Chief Justice was letting the court reporter decide what to include in the official record.

And Davis took that opportunity to include in his headnote the bizarre claim that the Court had ruled on corporate constitutional rights, even though the decision itself said no such thing.

What Actually Happened?

Did Waite really make that announcement before oral arguments? Did all the justices really agree that corporations were persons?

The historical evidence suggests neither occurred.

First, there’s no record of such an announcement in the official transcript of oral arguments.

Second, the decision itself contradicts it. If all the justices agreed that corporations were persons and thus entitled to the protections of the Fourteenth Amendment, why would Justice Harlan write that “it is not necessary to consider” that question? Why would the Court avoid the issue entirely?

Third, no other justices left any record whatsoever of agreeing to such a radical position. We have their papers, their letters, their other opinions, and none of them suggest they believed at that time that corporations were constitutional persons for purposes of Fourteenth Amendment protections.

And fourth, the timing is suspicious. If Waite had actually made this announcement in the context Davis was suggesting, it would have been big news. Contemporary newspaper accounts of the case don’t mention it, and legal commentators at the time didn’t note it. It only appears in Davis’s headnote, which was written months after the decision as Waite lay sick and dying from heart failure.

The most likely explanation is that Waite had said something to that effect about corporations being a kind of artificial person. As Blackstone noted a century earlier and Delmas quoted, it’s true that corporations have some constitutional rights: they need legal standing to own property, pay taxes, open bank accounts, be held responsible under the law, and so on, and that’s been recognized by the Supreme Court going all the way back to the Dartmouth v. Woodward decision in 1819.

But the artificial person that’s a corporation is an entirely different thing from the “natural persons” the Fourteenth Amendment was written to protect. So, it’s possible that Waite was simply acknowledging Dartmouth, if he did make that comment or something close to it.

Thus, either Davis manufactured the claim or he mischaracterized something Waite said. Either way, Davis put it in the official record as if corporations having rights similar to humans was now established law.

And because Davis was the official reporter, because his headnote appeared in United States Reports, because nobody had reason to doubt it, the fraud succeeded.

The Motive

This raises the inevitable questions: Why would Davis do this? What did he gain?

The answer is most likely found in the gilded world of 1880s America, where oligarchs lavishly rewarded those who best served their interests, much as Trump does today with his corporate donors when they bring him gifts and donations.

Railroad stock holdings would increase in value if railroads gained constitutional protections from taxation and regulation, and Davis owned railroad stock (he’d even briefly been president of a regional railroad). He had friends who owned railroad stock, and the headnote served their interests directly.

But there was likely more to it than just money. Men like Davis operated in what were then referred to by social scientists as “networks of mutual benefit.” Today we call it naked corruption. Back in those days, they simply called it “the way business gets done.” You helped the railroad oligarchs, they helped you—financially, politically, and even socially.

Thus, Davis didn’t need to be offered a direct bribe. He knew which side his bread was buttered on. Writing a headnote that served railroad interests cost him nothing and potentially gained him much.

It was the perfect crime: invisible, deniable, and enormously profitable for everyone except the American working class and the future generations that Reagan and the GOP would crush using Davis’s headnote.

Serving the Oligarch Class

It also turns out that Davis’s fraud served interests far beyond the Southern Pacific Railroad’s tax case. He wasn’t just helping one corporation avoid property taxes; he helped an entire oligarchic class acquire a weapon they could use against democracy for generations to come.

Consider what the oligarchs faced in 1886. The labor movement was growing. The Knights of Labor had just reached peak membership and became the largest union in world history. Strikes were spreading across industries. Workers were demanding the eight-hour day, a living wage, and safer working conditions.

States were beginning to seriously regulate corporations by setting safety standards, limiting working hours, and requiring fair treatment of workers. Farmers were organizing against railroad and processor monopolies. Reformers were demanding antitrust laws to break up corporate consolidation, and the newspapers were all over it.

The First Progressive Era was dawning, and everything the oligarchs had built through corruption, exploitation, and ruthless business practices was, in their minds, under threat.

What they needed was more than a simple court victory in one tax case: they needed a constitutional principle they could use to fight back against democratic governance itself. They wanted to be able to claim that common-sense regulations violated their constitutional rights, that taxes were unconstitutional “takings” as defined by the Fifth Amendment, and that the labor protections FDR would later codify into law infringed on their constitutional rights.

Corporate constitutional rights gave them exactly that and more.

With Davis’s fraudulent headnote established as precedent, corporations could claim Fourteenth Amendment protections, such as “due process” rights. They could claim to be the victims of “unequal protection” prohibited by that Amendment when states tried to treat them differently from human beings.

Davis handed the oligarchs a constitutional weapon that they’d use for the next 140 years to fight against every democratic effort to build and protect the American Dream.

The Accomplice

But John Chandler Bancroft Davis didn’t act alone. He had an accomplice on the Supreme Court itself: Justice Stephen J. Field.

Field was more than just sympathetic to corporate interests; he was a true believer in corporate constitutional rights. He’d been advocating for them in dissents and concurrences on behalf of the railroad oligarchs in California for years.

Justice Field and Court Reporter Davis knew each other well. They moved in the same elite social and political circles. They shared the same ideology: that property rights were sacred and democratic attempts to regulate corporations were tyrannical.

Justice Field had been waiting for the right case to establish corporate constitutional rights, and Santa Clara looked promising. But when the majority decided to rule on narrow technical grounds instead of reaching the constitutional question, Field’s opportunity slipped away.

Or did it?

Reporter Davis’s headnote accomplished what Justice Field couldn’t achieve through the Court’s decision. It established corporate constitutional rights in the official record, where future courts would cite it as precedent.

Did Justice Field encourage Davis to write the fraudulent headnote? Did they coordinate? The historical record doesn’t prove conspiracy, but it shows opportunity, motive, and benefit.

What we know for certain is that Justice Field welcomed the headnote’s impact. In later cases, he cited gleefully Santa Clara as establishing corporate constitutional rights, and he never corrected the record. He never bothered to say, “Wait, that’s not what we decided.”

The silence of accomplices often speaks loudly.

The Perfect Crime

By the time anyone might have noticed the fraud, it was too late. Less than four months after joining the Court in 1937, Justice Hugo Black issued a dissenting opinion in Connecticut General Life Insurance Company v. Johnson, writing:

I do not believe the word “person” in the Fourteenth Amendment includes corporations. . . . ​Certainly, when the Fourteenth Amendment was submitted for approval, the people were not told that the states . . . ​ratified an amendment granting new and revolutionary rights to corporations.

This amendment sought to prevent discrimination by the states against classes or races. . . . ​Yet, of the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of 1 percent invoked it in protection of the Negro race, and more than 50 percent asked that its benefits be extended to corporations.

Courts subsequent to the publication of Davis’s case summary had already relied on the headnote, so the precedent was established. Unwinding it would require admitting that the Supreme Court’s official reporter had committed fraud and that generations of lawyers and judges had been fooled.

Nobody associated with the Supreme Court, and certainly nobody in corporate America, wanted to admit that.

So, the fraud has stood for a century and a half. It became law through repetition. By 1890, just four years after Santa Clara, even the Supreme Court itself was citing the headnote as if it were the decision.

The perfect crime isn’t one that’s never discovered: it’s the one where discovery of it changes nothing, where the damage is already done, and where correcting the fraud would be more embarrassing or difficult than living with it.

Davis committed the perfect crime. The railroad oligarchs benefited tremendously, as do massive corporations and their billionaire owners today, but American democracy and the working class paid the price.

The Long Shadow of the Triggerman

Court Reporter J.C. Bancroft Davis died in 1907, twenty-one years after writing the fraudulent headnote that reshaped American democracy. He never faced consequences for what he did, was never investigated, prosecuted, or even publicly questioned about it.

He probably died believing he’d done nothing wrong, or at least nothing that men of his class and position didn’t routinely do. Helping the oligarchs was simply what one did back then; it was how the system worked.

But the shadow of his fraud now stretches across more than a century:

Every time a corporation claims First Amendment rights to spend unlimited money on elections, it’s Davis’s fraud.

Every time a corporation claims due process rights to block environmental regulations, it’s Davis’s fraud.

Every time a corporation claims equal protection to avoid taxes that fund schools, roads, and public services, it’s Davis’s fraud.

Every time a corporation claims religious freedom to deny employees healthcare coverage, it’s Davis’s fraud.

Every time a corporation prevents the EPA from investigating their pollution by citing the Fourth Amendment right to privacy, it’s Davis’s fraud.

The American middle class that Reaganomics shrank from 66 percent in 1981 to 43 percent today was crushed under Davis’s fraud.

The fifty-plus trillion dollars transferred from working Americans into billionaires’ money bins since the Reagan Revolution was enabled by Davis’s fraud.

The student debt, the healthcare bankruptcies, the housing crisis, the stagnant wages, the dying American Dream: all were made possible by that single fraudulent sentence written by a court reporter serving the railroad oligarchs’ interests in 1886.

Digging one level deeper, however, we find that while Davis was the triggerman, he was also apparently working for someone else. To understand the full scope of the conspiracy, we must understand its mastermind: Justice Stephen J. Field.

FYI, I will be on C-SPAN this morning at 9:15 ET.

Chapter 2: The Courtroom Showdown

The Old Senate Chamber in Washington was warm for January, the heavy air thick with coal smoke and anticipation. On January 26, 1886, two men prepared to argue before the most powerful court in America. One represented the largest corporation on the continent. The other represented a small California county fighting to collect its taxes.

The outcome would shape American democracy for the next century and a half.

The Railroad’s Champion

S.W. Sanderson entered the chamber like a man who owned it. And in a sense, he did. The chief legal counsel for the Southern Pacific Railroad stood more than six feet tall, an aristocratic bear of a man with neatly combed gray hair and an elegantly trimmed white goatee. For more than two decades, Sanderson had made himself rich litigating for the nation’s largest railroads, defending the interests of oligarchs like Leland Stanford, Charles Crocker, Collis Huntington, and Mark Hopkins.

Sanderson was famous enough that artist Thomas Hill had included him in his painting The Last Spike, commemorating the 1869 transcontinental meeting of the Union Pacific and Central Pacific Railroads at Promontory Summit, Utah. In that painting, Sanderson appears portentous and dignified, standing among the railroad barons who had conquered a continent. He saw himself as their equal.

That day he would ask the Supreme Court to grant his corporate clients something they had been seeking for decades: the constitutional rights of human beings.

Sanderson had argued versions of this claim before. The railroads had lost every time. In 1873, the Court had declared that the Fourteenth Amendment’s “one pervading purpose” was “the freedom of the slave race.” In 1877, the railroads brought four different cases to the Supreme Court, arguing that they deserved constitutional protection as “persons” under that same amendment. They lost all four.

But Sanderson kept coming back. The oligarchs he served had unlimited resources, unlimited patience, and unlimited ambition. They would keep filing cases until they found a way to win.

The People’s Advocate

Santa Clara County’s lawyer Delphin M. Delmas was everything Sanderson was not. Where Sanderson was large and imposing, Delmas was small and unimposing, a fastidious man known to wear a frock coat, gray-striped trousers, a wing collar, and an ascot tie. He had a substantial nose and a broad forehead only slightly covered with a wispy bit of thinning hair. He looked like a clerk, not a gladiator.

But in the courtroom, Delmas transformed. His voice thrummed with emotion. He was nationally known as the “master dramatist of America’s courtrooms,” and by 1904 would be called “the Silver-Tongued Orator of the West” when elected a delegate to the Democratic National Convention.

His courtroom performances were legendary. The nation would later learn just how brilliant he was in 1908, when he successfully defended Harry K. Thaw for murder in the most sensational case of the first half of the century, later made into the 1955 movie The Girl in the Red Velvet Swing, starring Ray Milland and Joan Collins. Luther Adler played Delmas.

But on this January day in 1886, Delmas was not yet famous. He was simply the young lead attorney for Santa Clara County, California, a small government entity suing the massive Southern Pacific Railroad for six years of unpaid property taxes.

While Sanderson had spent his career serving the richest men in America, Delmas had always worked on behalf of local governments and ordinary citizens. He had passionately argued, pro bono, before the California legislature for a law to protect the nation’s last remaining redwood forests. He was fiercely defensive about the rights of natural persons, of actual human beings, against the artificial creatures of law that sought to usurp their place.

For Delmas, this case was about something far larger than taxes. It was about whether corporations created by state law could claim the constitutional rights won by flesh-and-blood human beings who had fought and died for independence and then triumphed over the South’s brutal oligarchs in the Civil War.

The Stakes

The case itself was almost comically trivial. The Southern Pacific Railroad owed Santa Clara County approximately $30,000 in back taxes on property with a $30 million mortgage. That’s like having a $10,000 car and refusing to pay a $10 tax on it, then taking the case all the way to the Supreme Court.

One of the railroad’s defenses was even more absurd: when the state assessed the value of the railroad’s property, it had accidentally included the value of fences built by private landowners along the right-of-way. The county, not the state, should have separately assessed those fences. Therefore, the railroad argued, the tax was “unequal” compared to what they paid in other counties.

But the railroad’s lawyers had slipped something else into their arguments, something that had nothing to do with fences or tax assessments. They claimed that the railroad corporation was a “person” under the Fourteenth Amendment, entitled to the same constitutional protections as the freed slaves that amendment was written to protect.

If the Court agreed, it would transform American law. Corporations would gain the power to challenge any regulation, any tax, any democratic decision that treated them differently from human citizens. They would gain access to the Bill of Rights, to due process, to equal protection. They would become, in the eyes of the Constitution, the equals of the human beings who’d created them.

Sanderson’s Argument

Sanderson rose to address the Court. Chief Justice Morrison Waite looked down from the bench, a square-headed man with a bristly graying beard that shot out in every direction. Waite himself was a former railroad attorney who had never served as a judge before being appointed Chief Justice. He owed his position to President Grant, whose administration was so wracked with railroad bribery scandals that his own Republican Party refused to renominate him for the presidency.

“I believe,” Sanderson declared, “that the clause of the Fourteenth Amendment in relation to equal protection means the same thing as the plain and simple yet sublime words found in our Declaration of Independence: ‘all men are created equal.’ Not equal in physical or mental power, not equal in fortune or social position, but equal before the law.”

It was audacious. Sanderson was claiming that a railroad corporation, an artificial entity created by state law and owned by some of the richest oligarchs in America, deserved the same constitutional protections as freed slaves emerging from centuries of bondage. He was hijacking the language of liberation to serve the interests of concentrated wealth.

Sanderson’s fellow lawyer for the railroads, George F. Edmunds, added that the Fourteenth Amendment created a “broad and catholic provision for universal security, resting upon citizenship as it regarded political rights, and resting upon humanity as it regarded private rights.”

Humanity. The railroad lawyers were claiming their corporate clients were human.

Delmas Responds

When Delmas rose to speak, his transformation began. The small, fastidious man became something else entirely—a prophet of democratic rage: “The defendant claims that California’s taxation policy violates that portion of the Fourteenth Amendment which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws,” Delmas began, his voice thrumming with barely controlled fury. Such an argument, he said, “if tenable, would place the organic law of California in a position ridiculous to the extreme.”

Then Delmas went on the attack:

The shield behind which the Southern Pacific Railroad attacks the Constitution and laws of California is the Fourteenth Amendment. It argues that the amendment guarantees to every person within the jurisdiction of the State the equal protection of the laws; that a corporation is a person; that, therefore, it must receive the same protection as that accorded to all other persons in like circumstances . . . ​. To my mind, the fallacy of the argument lies in the assumption that corporations are entitled to be governed by the laws that are applicable to natural persons.

Delmas reached for the ultimate authority, the book that the Founders themselves had consulted when writing the Constitution: Sir William Blackstone’s 1765 Commentaries on the Laws of England. He quoted Blackstone: “Persons are divided by the law into either natural persons or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.”

Delmas moved from legal authority to common sense. If a corporation was truly a “person,” why could it not make out a will or get married?

“This definition suggests at once that though a corporation is a person, it is not the same kind of person as a human being, and need not, nay, in the very nature of things, cannot enjoy all the rights of such or be governed by the same laws. When the law says, ‘Any person being of sound mind and of the age of discretion may make a will,’ or ‘any person having arrived at the age of majority may marry,’ I presume the most ardent advocate of equality of protection would hardly contend that corporations must enjoy the right of testamentary disposition or of contracting matrimony.”

The Heart of the Matter

Now Delmas reached the heart of his argument. Everyone in that chamber knew the history of the Fourteenth Amendment. It had been written to protect freed slaves, to ensure that the men and women who had been held in bondage would have the same rights as their former masters. The blood of a civil war was still fresh on the ground. The memory of slavery was still alive.

He continued: “The whole history of the Fourteenth Amendment demonstrates beyond dispute that its whole scope and object was to establish equality between men, an attainable result, and not to establish equality between natural and artificial beings, an impossible result.”

Delmas was trembling now, his small frame vibrating with righteous indignation. He was a California Democrat who had spent his life fighting for the little guy, and he knew, as did anyone who read the newspapers of that era, exactly what the Fourteenth Amendment meant and why it had been written.

The Fourteenth Amendment, he declared, “is as broad as humanity itself”:

Wherever man is found within the confines of this Union, whatever his race, religion, or color, be he Caucasian, African, or Mongolian, be he Christian, infidel, or idolater, be he white, black, or copper-colored, he may take shelter under this great law as under a shield against individual oppression in any form, individual injustice in any shape. It is a protection to all men because they are men, members of the same great family, children of the same omnipotent Creator.

In its comprehensive words I find written by the hand of a nation of sixty millions in the firmament of imperishable law the sentiment uttered more than a hundred years ago by the philosopher of Geneva, and re-echoed in this country by the authors of the Declaration of the Thirteen Colonies: Proclaim to the world the equality of man.

The Mission of the Amendment

Speaking of the object of the Fourteenth Amendment, Delmas laid it out plain:

Its mission was to raise the humble, the down-trodden, and the oppressed to the level of the most exalted upon the broad plain of humanity, to make man the equal of man; but not to make the creature of the State, the bodiless, soulless, and mystic creature called a corporation, the equal of the creature of God. . . ​.

Therefore, I venture to repeat that the Fourteenth Amendment does not command equality between human beings and corporations.

The bodiless, soulless, and mystic creature called a corporation. Delmas had found the phrase that captured exactly what the railroads were asking for: to make an artificial creation of law the constitutional equal of a child of God.

The Warning

In closing, Delmas issued a warning. This case, he suggested, could be one of the most important in the history of the United States. If corporations were given the powerful cudgel of human rights secured by the Bill of Rights, their ability to amass wealth and power could lead to death, war, and the impoverishment of actual human beings on a massive scale.

“I have now done,” he said. “Yet I cannot but think that the controversy now debated before your Honors is one of no ordinary importance.”

The chamber fell silent. Delmas had laid before the Court the full stakes of what the railroad was asking. He had traced the history of the Fourteenth Amendment from the American Revolution to the blood of the Civil War to this moment, from Declaration of Independence to the liberation of enslaved human beings to the attempted liberation of soulless corporations.

The question was whether the Court would listen.

The Long Wait

A year and five months passed while the Supreme Court debated the issues in private.

In that time, the railroad oligarchs waited. Leland Stanford continued expanding his empire. Collis Huntington continued buying politicians. The Southern Pacific Railroad continued to refuse to pay its taxes, its lawyers confident that their strategy would eventually succeed.

And then came May 10, 1886.

That afternoon, in the same Old Senate Chamber where Delmas had delivered his passionate defense of human rights, Chief Justice Waite prepared to announce the Court’s decision. Delmas was there. Sanderson was there. The fate of American democracy hung in the balance.

What happened next would not become clear for another eighty years. The crime was about to be committed, and it would be hidden in plain sight for generations.

Delmas had won the argument. He would lose the war.

A Discovery Across Time

I searched for the better part of a year for copies of the arguments made in the Santa Clara case. The Supreme Court kept no detailed notes of oral arguments in those days. Most of what was said in that chamber was lost to history.

Then, in an antiquarian bookstore in San Francisco, I found a treasure: Speeches and Addresses by D.M. Delmas. It was a hardbound collection that Delmas had personally paid to self-publish in 1901, containing his most important courtroom arguments, including his full presentation before the Supreme Court in the Santa Clara case.

Holding that book was like holding a time machine. Delmas’s arguments were as brilliant and persuasive as any words that Erle Stanley Gardner ever put into the mouth of Perry Mason. Here was the voice of a man fighting for the soul of American democracy, preserved across more than a century.

He was right about everything. Corporations were artificial creations of law, not natural persons. The Fourteenth Amendment was written to protect freed slaves, not railroad barons. Granting corporations constitutional rights would distort American democracy for generations to come. It could even empower a would-be dictator to take over America with the help of corporate money.

Delmas saw it all, warned of it all, fought against it with every tool at his disposal.

And he lost anyway. Not because his arguments were wrong, but because the fix was already in. The conspiracy was already underway.

What Delmas could not know, standing in that courtroom, was that Justice Stephen J. Field was sitting on the bench with a plan. Field had already ruled repeatedly (including in the Santa Clara case) as a circuit court judge in California that corporations were persons under the Fourteenth Amendment. He owned railroad stock. He socialized with railroad executives. He harbored presidential ambitions that he hoped the oligarchs would finance.

And he had a friend in the court reporter’s office.

The Scene of the Crime

The crime took place in Washington, DC, but its seeds were planted in California, where the most powerful corporation in America was waging war against democracy itself.

The Dawn of the First Progressive Era

To truly grasp the scope of the crime of 1886, you first have to understand what America was becoming at the time, and what the oligarchs were desperately trying to stop.

The 1880s started what historians would later call the First Progressive Era. After decades of unfettered corporate power following the Civil War, leading to brutal practices against workers, Americans were finally waking up and organizing. This rise of the new power of labor and communities demanding progressive changes had that era’s oligarchs terrified.

By 1886, the Knights of Labor had grown to seven hundred thousand members, which made it the largest labor organization in American history. Workers, who’d been treated as disposable, were discovering their collective power and demanding an eight-hour workday, safer working conditions, and an actual living wage so they could support their families with dignity.

States were also beginning to regulate corporations in serious ways. These included new laws that limited working hours, required basic safety standards in factories and mines, and taxed corporate property to fund public schools, roads, mass transit, and other infrastructure that would benefit ordinary citizens beyond just the morbidly rich.

Farmers were organizing into state-based cooperatives, pooling their resources to escape the stranglehold of the railroad shipping monopolies and grain elevator cartels. The Grange movement had already won major victories in several states, confirming the newly recognized principle that state governments had the power to regulate corporations by citing the “public interest.”

In short, the seeds of the American Dream—the promise that hard work would be rewarded with security and dignity, that ordinary people could own their own homes and businesses, that children would have opportunities their parents never had—were just beginning to sprout. The Progressive Era that would transform America and create the world’s first widespread middle class was dawning.

The oligarchs and “conservative” politicians of that day well understood what was at stake. If this movement succeeded, if workers gained real power, if states could effectively regulate corporate activities, if taxes on the wealthy funded public goods that lifted all boats, then the era of rampant, unchecked corporate dominance would end. The railroad barons, the steel magnates, and the banking titans (among others) who’d accumulated unprecedented fortunes would have to share that power with America’s democratic majority.

The oligarchs thus needed a weapon to fight back. They searched for years and finally found it in the Fourteenth Amendment, written to protect freed slaves but now soon to be perverted to protect corporate profits and oligarchic wealth.

The Railroad Oligarchs

In the 1880s, the Southern Pacific Railroad wasn’t just a company: it essentially functioned as if it were a government unto itself.

The railroad controlled California’s politics completely. Its executives owned senators, judges, governors, and newspaper editors. It had its own police force, its own courts and jails, and its own laws. When the railroad wanted something, the railroad got it. When it didn’t want something, that thing didn’t happen.

The men who owned the Southern Pacific—Leland Stanford, Collis Huntington, Mark Hopkins, and Charles Crocker, known as the “Big Four”—were America’s first oligarchs (other than the Southern plantation owners who’d tried to overthrow democracy and were defeated in the Civil War). They weren’t just rich; they wielded their wealth as a weapon to bend local, state, and even the federal government to their collective will.

Stanford would later found Stanford University, laundering his reputation through philanthropy, the way many oligarchs have done ever since. But that came later; in the 1880s he was a railroad baron who saw democracy as an infuriating obstacle to ever-increasing profits and a challenge to his own personal wealth and political power.

And his railroad had a problem. California counties, under pressure from voters, were passing legislation that taxed railroad property to pay for public improvements including schools, roads, and bridges. The railroad barons, incensed, called this theft. They’d built their empires via federal land grants (Lincoln gave them tens of millions of acres during the Civil War), political corruption, and absolutely ruthless business practices. The idea that local communities could tax them to fund the common good seemed, to these railroad oligarchs, like an outrageous violation of their rights.

Most importantly, those taxes weren’t just about revenue; they were also about power. They were about democratic communities saying out loud that they could control the corporations that operated in their territory. They claimed that corporations existed to serve public purposes, not the other way around.

If California could tax the railroads to fund public schools, the oligarchs reasoned, then children of workers might get educated. Educated workers would know how to demand better wages. Better wages would cut into railroad profits. If these affronts were allowed to stand, the whole system that kept the oligarchs on top might start to unravel.

So, Stanford and his buddies decided to manufacture a constitutional right that didn’t exist: the right of corporations to be treated as “persons” under the Fourteenth Amendment. It was a preemptive strike against the Progressive Era before it had even fully emerged.

The Amendment Written in Blood

The Fourteenth Amendment was ratified in 1868, just three years after the Civil War ended. Its purpose was singular and clear: to guarantee that freed slaves would be recognized as full citizens with constitutional rights.

Section 1 contains the key language: “No State shall . . . ​ deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Over six hundred thousand Americans died in the Civil War; the Fourteenth Amendment was drafted in their blood. It was meant to ensure that the Black Americans for whom the war was fought would be protected by the Constitution. It was meant to guarantee that the promise of America—that all men are created equal, that every American deserved a chance at what Jefferson called “life, liberty, and the pursuit of happiness”—would finally apply to all Americans, regardless of the color of their skin.

The amendment carried the potential for real power, and it had already begun to transform the nature of America through Reconstruction, so the railroad oligarchs decided to exploit and corrupt it for their own purposes.

They’d tried before. During the first two decades after the Civil War following its ratification, corporations brought case after case to court, arguing that they were “persons” entitled to Fourteenth Amendment protections and thus access to the Bill of Rights (the first ten amendments to the Constitution). They lost. Repeatedly.

For example, in 1877, in Munn v. Illinois, the Supreme Court explicitly rejected the idea that corporations had the same rights as natural persons. Chief Justice Morrison Waite wrote for the majority that corporations were subject to “regulation . . . ​for the public good.” Although they had a limited form of what today we’d call artificial personhood so they could sign contracts and pay taxes, they were not protected as if they were human persons under the Fourteenth Amendment.

That decision was a victory for democracy. It affirmed what the Founders understood: that corporations are creations of law, subject to democratic control, not autonomous entities with the same “inherent rights” recognized for humans in the Bill of Rights. It meant that each of the states could regulate businesses in its own way, tax them fairly, and require them to serve the public interest.

If Munn v. Illinois had remained the law of the land, the reforms of the Progressive Era that followed might have been easier to achieve and harder to reverse. The American Dream might have taken root even earlier, and today we’d probably be far ahead even of Europe’s most progressive democracies like Norway and Denmark, since we would have had such a huge head-start.

That failing, the oligarchs needed a new strategy.

The Tax Case

In 1882, the Southern Pacific Railroad simply stopped paying property taxes in several California counties, claiming the taxes were illegitimate. The counties sued, and the railroad fought back with an entirely new legal argument.

They claimed that those California counties’ tax assessment methods violated the Fourteenth Amendment because they treated railroad property differently from other property, and that different counties had different tax rates. This “unequal protection,” they argued, violated their rights as “persons” under the Constitution.

The case was Santa Clara County v. Southern Pacific Railroad Company. It worked its way through the lower courts for four years and finally reached the Supreme Court for the 1885/1886 term.

The railroad had advantages that most litigants lack. They had unlimited money for legal fees, political connections to judges and politicians, and, most importantly, they had something else: a friend on the Supreme Court itself.

US Supreme Court Associate Justice Stephen J. Field was a Californian who’d made his fortune during the Gold Rush. He owned railroad stock, socialized with railroad oligarchs, and believed, passionately, that corporations deserved constitutional protection from democratic governance.

Field’s vision could be described as feudal. Like Edmund Burke generations earlier, he believed a small class of property owners should rule America, protected by the Constitution from the whims of the democratic majority. Wealth, he believed, was proof of goodness, wisdom, and competence, and poverty was a failure of the will.

The emerging middle class of the late mid-nineteenth century threatened this vision, in Field’s view. Workers organizing into unions, farmers forming cooperatives, small businesses openly fighting the monopolies: all of this had to be stopped.

Field had been waiting for the right case, and Santa Clara would be it.

It started in 1883 because back then Supreme Court judges also “rode the circuit,” working in their states as chief judges of the appeals courts most months of the year, and just spending a few months every year in Washington, DC, as justices of the Supreme Court.

So, in 1883, that case first came before Field in his capacity on the 9th Circuit Court of Appeals. He ruled in favor of the railroad, writing in his decision:

The Fourteenth Amendment of the Constitution, in declaring that no State shall deny to any person within its jurisdiction the “equal protection of the laws,” imposes a limitation upon the exercise of all the powers of the State which can touch the individual or his property, including that of taxation.

The “equal protection of the laws” to any one implies not only that the means for the security of his private rights shall be accessible to him on the same terms with others, but also that he shall be exempt from any greater burdens or charges than such as are equally imposed upon all others under like circumstances. This equal protection forbids unequal exactions of any kind, and among them that of unequal taxation.

Once Santa Clara County appealed their loss in the 9th Circuit, the case came before the US Supreme Court with Field himself as one of the men sitting in judgement.

The Oral Arguments

On January 26, 1886, the Supreme Court—with Justice Stephen J. Field in attendance—heard oral arguments in Santa Clara County v. Southern Pacific Railroad Company. J.C. Bancroft Davis, the Court’s official reporter, took the notes, as did the county’s lawyer, Delphin Delmas.

The railroad’s lawyers made their pitch, echoing Field’s decision in the 9th Circuit case: “The Fourteenth Amendment protects ‘persons’ from unequal treatment. Corporations are persons. Therefore, California’s unequal tax assessment violates the railroad’s constitutional rights.”

The county’s lawyers countered: “The Fourteenth Amendment was written to protect freed slaves who are actual humans, not railroad corporations. The framers never intended to grant constitutional rights to corporate artificial entities created by state law.”

Then something weird happened.

Chief Justice Morrison Remick Waite interrupted the arguments. According to court records, he made an announcement: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

The county’s lawyer, trying to argue against the railroad’s assertion that they were “persons” protected by the Fourteenth Amendment’s Equal Protection Clause, was essentially told not to bother. The Court had already decided.

Or had it?

The Decision That Wasn’t

On May 10, 1886, the Supreme Court laid down its decision in Santa Clara County v. Southern Pacific Railroad Company.

Justice John Marshall Harlan wrote the majority opinion. It’s a technical, somewhat boring ruling about fence valuations and tax assessment procedures. The Court found in favor of the railroad, but not because of the Fourteenth Amendment; instead, it ruled that California had illegally included the value of the fences along the railroad right-of-way in the land’s assessment in violation of its own laws.

Here’s what Justice Harlan actually wrote in the Santa Clara opinion about corporate constitutional rights: nothing.

The Court’s decision explicitly avoided the constitutional question. The Court instead ruled on narrow technical grounds having to do with California tax law that had nothing whatsoever to do with whether corporations were persons under the Fourteenth Amendment.

In fact, Harlan’s decision begins by noting that since the Court could dispose of the case on other grounds, “it is not necessary to consider” whether the Fourteenth Amendment applies to corporations.

It doesn’t get more explicit: “it is not necessary to consider.”

The Supreme Court explicitly refused to rule on corporate constitutional rights.

So where did the idea that Santa Clara established corporate constitutional rights come from?

The Headnote

J.C. Bancroft Davis was the Supreme Court’s Reporter of Decisions, what we today call the court reporter. His job was to take notes and then publish the Court’s written opinions in officially sanctioned volumes, adding brief headnotes to summarize each case.

For Santa Clara, Davis wrote: “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws.”

That sentence appears before the decision itself. It looks official. It’s printed in the United States Reports, the official record of Supreme Court decisions.

But it’s not part of the decision. It’s not law; it’s just Davis’s statement. And Davis’s statement directly contradicts what the decision actually says.

The decision itself said the Court was definitely not deciding the corporate constitutional rights question: it was “not necessary to consider” because they were only going to rule on whether the county illegally counted the value of fenceposts when calculating the value of the land for property taxes.

The headnote, on the other hand, explicitly says the Court decided that corporations are persons.

One of them was clearly and blatantly lying. And since the decision was the official ruling of the Supreme Court, written by Justice Harlan and agreed to by the other justices, the liar had to be Davis.

Davis, we now can see, put words in the Court’s mouth—words the Court never said, using language that would alter the course of American history for more than a century.

The question is why?

The Cover-Up Begins

Within months of the publication of the Santa Clara decision, lawyers for corporations began citing it as precedent for corporate constitutional rights, pointing to the headnote instead of the decision.

Judges, seeing that citation in the official United States Reports, assumed it was accurate and, within a decade, began to rely on it. Soon, other cases were citing Santa Clara as having finally and firmly established that corporations are persons under the Fourteenth Amendment and entitled to the rights previously enjoyed only by humans.

Nobody, it appears, bothered to check the actual decision. Why would they? After all, it was right there in the official record, summarized by the Supreme Court’s own official reporter, a wealthy and powerful man with a well-known reputation who was the son of the Massachusetts governor.

In 1889, just three years after Santa Clara, corporate lawyers first successfully established that damnable headnote as precedent. In Minneapolis & St. Louis Railway Co. v. Beckwith, the Supreme Court cited Santa Clara, claiming in an actual decision that corporations are persons under the Fourteenth Amendment.

With that case, now in an actual decision by the Court itself and not just a statement by the Court’s reporter, the lie became the law.

And today, much to the detriment of both democracy and America’s working class, 137 years later, it still is.

What Was Lost

The fraud of 1886 didn’t just corrupt constitutional law. It altered the entire course of American history.

The Progressive Era still happened, and the labor movement still won important victories. The income tax was established. Antitrust laws were passed. Women won the right to vote. The First Progressive Era, from the 1890s through 1920, identified crucial reforms, most of which just made America’s oligarchs even more determined to fight back.

And when the Republican Great Depression showed what unrestrained corporate power really meant—banks failing, families starving, millions homeless—Franklin Roosevelt reinvented American politics and economics to create the Second Progressive Era, what he called the New Deal. It included Social Security, the right to organize unions, regulations that prevented banks from gambling with depositors’ money, and a tax system that required the wealthy to pay their fair share.

By 1981 when Reagan was sworn into office, the American Dream was real for fully two-thirds of Americans. A single income could support a family. You could buy a house for three times your annual salary. College was affordable or, in some states, even free. Healthcare didn’t bankrupt families. Retirement was secure. Children had better opportunities than their parents.

But throughout that entire period, Field’s and Davis’s doctrine of corporate constitutional rights remained embedded in constitutional law like a dormant virus or an unexploded landmine. The oligarchs had lost battle after battle during the Progressive Eras, but they succeeded in hanging onto their ultimate weapon: the fraudulent claim that corporations had constitutional rights.

When Ronald Reagan’s “conservative (neoliberal oligarchic) revolution” began in 1981, that weapon was activated. Corporate constitutional rights became the battering ram that destroyed the American Dream, piece by piece, decade by decade, until we arrived at today, when Millennials own just 4.6 percent of the nation’s wealth compared to the 21.3 percent Boomers owned at the same age, and our president is openly dancing to the tunes of major polluters and fossil fuel corporations in exchange for campaign contributions and gifts.

The railroad oligarchs and their shills of 1886, J.C. Bancroft Davis and Stephen J. Field, planted a bomb in the Constitution. It took five generations to fully detonate it, but when the oligarchs of the 1970s and 1980s finally did, it laid waste to almost everything the Progressive Eras had built.

Understanding how that bomb was planted—and who planted it—is critical to knowing how to defuse it.

That’s what brings us to the triggerman: J.C. Bancroft Davis.

The Crime Scene

How Corporations Stole Human Rights in 1886

THE CASE

Santa Clara County v. Southern Pacific Railroad Company,
US Supreme Court, 1886

Actual issue: A county sued a railroad over $30,000 in unpaid property taxes.

THE CONSPIRATORS

THE TRIGGERMAN: J.C. Bancroft Davis, Supreme Court Reporter
Former railroad president • Railroad stock owner

His crime: Wrote a fraudulent summary claiming the Court ruled corporations are “persons”

THE MASTERMIND: Justice Stephen J. Field, Supreme Court Justice
Railroad stock owner • Friend of railroad oligarchs

His goal: Corporate constitutional rights through decades of failed court cases

THE FRAUD:

WHAT DAVIS WROTE: The Headnote: “The defendant Corporations are persons within the intent of the Fourteenth Amendment . . . ​”

THIS IS NOT LAW: Headnotes are summaries with no legal standing.

WHAT THE COURT ACTUALLY RULED: “It is not necessary to consider” whether the Fourteenth Amendment applies to corporations.

THE COURT REFUSED TO DECIDE: They ruled only on a technicality about fence taxes.

THE RESULT: For 140 years, courts cited Davis’s fraudulent headnote as if it were law.

One lie became the foundation for

Citizens United: corporate “free speech” to buy elections

Hobby Lobby: corporate “religious freedom”

Corporate “privacy” to hide pollution and crimes

Corporate “due process” to block regulations

The Supreme Court never ruled that corporations are people.
A court reporter made it up.

Source: Santa Clara County v. Southern Pacific Railroad Company, 118 US 394 (1886)

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Prologue: A Crime in Plain Sight

Every law student in America learns the same story: “In 1886, the United States Supreme Court ruled in Santa Clara County v. Southern Pacific Railroad Company that corporations are persons under the Fourteenth Amendment. This single decision fundamentally transformed American democracy, business, and law. It granted corporations the same constitutional rights as human beings: free speech, due process, equal protection. Everything that followed, from unlimited corporate campaign spending to corporate control of our media, politics, and environment, traces back to that pivotal moment.”

There’s just one problem: It never happened. The Supreme Court debated this issue and never made that ruling. Not in 1886, not ever.

What actually happened is far more disturbing: A court reporter, a corrupt Supreme Court justice, and the railroad oligarchs who owned America’s most powerful corporations successfully conspired to rewrite the Constitution. They committed the crime in broad daylight, recorded it in official court documents, and hid it in plain sight for 140 years.

This is both a detective story and a true crime investigation. Like all good mysteries, it starts with a discovery, mine, in a dusty Vermont law library on a cold winter day in 2002.

The Library Discovery

I thought I was confirming a fact. Instead, I uncovered a crime scene.

I was researching corporate power in America, working in the Vermont Supreme Court library six blocks from my then-home in Montpelier. Every legal textbook, every encyclopedia, every Supreme Court case for the past hundred-plus years cited the same precedent: Santa Clara County v. Southern Pacific Railroad Company (1886) established that corporations are persons under the Fourteenth Amendment.

The reason I was in the library was simple: I wanted to read the actual decision, not summaries, not commentary, but the words the Supreme Court actually wrote.

The Vermont Supreme Court library contains one of the most comprehensive collections of legal documents in New England. Librarian Paul Donovan pulled down Volume 118 of United States Reports: Cases Adjudged in the Supreme Court at October Term 1885 and October Term 1886. The book was published in 1888 by Banks & Brothers in New York, written by J.C. Bancroft Davis, the Supreme Court’s official reporter.

The volume was heavy in my hands, its leather binding cracked with age, pages giving off that distinctive smell of vanilla and dust that old books possess, the scent of history itself.

I found the case—page 394. What I discovered there would change everything I thought I knew about American democracy.

The decision itself, the actual legal ruling written by Justice Harlan, said nothing about corporate constitutional rights. In fact, it explicitly stated that the Court was not deciding that constitutional question. The Court instead ruled on a narrow technical issue about fence-post assessments and California property tax law. Corporate constitutional rights under the Fourteenth Amendment were not addressed, not decided, and not even meaningfully mentioned.

But at the top of the case, before the decision itself, sat something called a “headnote” which said, in part: “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.”

I read it again. Then again. My coffee grew cold on the table beside me.

The headnote claimed that under the Constitution corporations were persons.

The decision explicitly refused to rule on that question.

One of them was lying.

I paid seventy cents for photocopies and walked through the crisp winter air to the office of Jim Ritvo, a local attorney and friend.

“What’s a headnote?” I asked, spreading the pages on his desk.

He leaned back in his chair, studying the documents. “Court reporters write them. They’re summaries for lawyers, convenient shortcuts to understand what a case is about without reading the whole thing.” He looked up at me. “But Thom, headnotes aren’t law. They’re not part of the decision. They have no legal standing whatsoever.”

“So, this headnote that says corporations are persons . . . ​”

“Isn’t law,” he finished. “Never was.”

I felt the floor shift beneath me.

“But every case since 1886 cites this as precedent! Law schools teach it. The Supreme Court itself cited it more than a dozen times.”

Jim picked up the pages, reading more carefully. “Then somebody’s been fooled for a very long time. Or somebody’s been doing the fooling.”

The American Dream Is Murdered

I didn’t know it yet, standing in that Vermont library, but I was about to discover why my generation was the last to experience the American Dream as our parents and grandparents knew it.

When my Boomer generation was the same average age as Millennials are today, back in 1990, we held 21.3 percent of the nation’s wealth. Louise and I shared in that wealth: although we were still in our 30s, in 1990 we owned a profitable small business—our fourth—and a nice home.

Our own locally owned business, a home of our own, and the knowledge that our kids would have more opportunities than we did: that was, in fact, one common way of defining the American Dream. It was normal then.

My dad, born in 1928, worked in a tool and die shop. He was able to buy a house, a new car every two years, and take a two-week vacation every year because the middle class in America before the Reagan Revolution had a pretty damn good life. Dad retired in the 1990s with a full pension that let him and my mom travel the world. He lived the American Dream, as did his four boys.

Millennials today, by contrast, are roughly the same number of people as Boomers were in 1990 but hold only 4.6 percent of the nation’s wealth. If they’re the same age I was in 1990, they’re most likely struggling to own a home, are deeply in debt, and find it nearly impossible to start a small business.

This is what a bizarre theory called “corporate personhood” or “corporate constitutional rights” has brought us to. Boomers in their 30s owned 21.3 percent of the nation’s wealth, while Millennials in their 30s today own a mere 4.6 percent of the nation’s wealth.

And the story for Zoomers, those born in the late 1990s and early 2000s, is pretty much the same, if not slightly worse.

What happened?

The answer was there on page 394 of that musty law book. A single fraudulent sentence that gave America’s oligarchs and the corporations that made them rich the constitutional weapons to dismantle everything that made America work for working people.

Why did my children’s generation face stagnant wages while across the nation worker productivity soared? Why did crushing student debt replace the free or near-free college my generation enjoyed? Why did housing costs explode from two times annual income to ten times annual income? Why did healthcare go from a manageable expense to the leading cause of bankruptcy in America? Why did the promise that hard work would be rewarded with security become a cruel joke for tens of millions of Americans?

Virtually all of it came about because of corporate constitutional rights.

That fraudulent headnote gave corporations constitutional rights they could wield against democratic governance. Against unions. Against environmental protections. Against consumer safety laws. Against taxes that funded public goods. Against anything and everything that built and sustained the American middle class.

The American Dream didn’t just fade away: it was murdered. And the murder weapon was forged in 1886 and then lifted against all of us with the 1980s Reagan Revolution.

The Investigation Begins

I spent the next few weeks in that library, pulling case after case. The pattern was unmistakable. Dozens, then hundreds, then thousands of court decisions cited Santa Clara as establishing corporate constitutional rights. They cited it the same way, always referencing that headnote but never quoting the decision itself that contradicted it.

The legal profession had been fooled. Or perhaps more accurately, it had fooled itself, generation after generation of lawyers and judges accepting what they’d been taught without checking the original source.

But who wrote that headnote? And why? Is this what they intended? And what does it mean not just for working-class people but for our democracy itself?

The answer to those questions would lead me deep into one of the most consequential conspiracies in American history, a conspiracy involving railroad oligarchs who controlled more wealth than entire nations, a Supreme Court justice whose corruption was hiding in plain sight, and a court reporter whose single fraudulent sentence would reshape American democracy for more than a century.

This book tells that story. But it tells more than that.

It reveals how that original crime in 1886 metastasized into today’s corporate domination of our economy, our media, our politics, and our lives. How the oligarchs of this era—the billionaires who control corporations like Exxon-Mobil, Amazon, Goldman Sachs, Google, and Comcast—are the direct heirs to those railroad barons. How they’ve used the same legal fiction to accumulate unprecedented power and transfer over fifty trillion dollars from working Americans to their own money bins just over the past four decades.

It shows how two Progressive Eras, from the 1890s through 1921 and again from 1933 through 1981, built the American Dream by constraining corporate power. How the Founders understood the dangers of corporate tyranny and deliberately excluded corporations from constitutional protection. How FDR’s recognition that “necessitous men are not free men” led to the creation of the largest middle class in world history, with two-thirds of Americans achieving middle-class status by the day Reagan was sworn in as president on January 20, 1981.

And it shows how corporate constitutional rights gave America’s oligarchs, Ronald Reagan, George W. Bush, and Donald Trump, the weapons they needed to tear it all down. To crush unions. To slash taxes on the wealthy. To offshore our factories. To turn healthcare into a profit center. To transform housing into a speculative commodity. To burden our children with crushing debt for the education that was once free or nearly free.

All to make themselves richer than any king, emperor, or pharaoh in all of human history.

The Cover-Up and the Solutions

But stealing our constitutional rights wasn’t enough; to get away with the crime, the perpetrators needed to hide it. They needed to make sure that when working Americans asked, “Who killed the American Dream?” they’d blame the wrong people.

Thus, they began a cover-up of the crime, in part, as an effort to slip it into subsequent Supreme Court decisions to make it law and, in part, as an effort to disguise the crime itself from current and future generations.

Over the past fifty or so years, the most effective part of the deflection—or cover-up playbook—has been a remarkably successful effort to divert Americans’ attention and anger away from the oligarchs and corporations that are actively undermining our democracy and get people to instead blame their woes on women, people of color, welfare recipients, and, most recently, nonwhite immigrants.

Entire media operations have joined this effort, as I’ll document in subsequent chapters. And it’s been largely successful; most Americans—and certainly the Republican base—have bought the cover-up hook, line, and sinker. They have no idea that the same billionaires who own the media that keeps them fooled are also working hard to keep them down, and instead cheer every effort to “own the libs” rather than constraining corporate or billionaire power.

What You Can Do to Fight Back

Most importantly, this book shows how we can undo the crime. How we can restore democracy. How we can reclaim the rights that were stolen from us and given to artificial entities that exist only on paper. I’ll detail for you exactly how we can rebuild the American Dream for our children and grandchildren.

There are multiple steps to reversing the abuse of human rights that this crime, committed in 1886, handed to corporations and America’s oligarchs.

They include passing legislation to blunt some of the worst impacts (particularly on our politics, now that corporations and billionaires can legally buy elections), passing a constitutional amendment to prevent Republicans on the Supreme Court from continuing or expanding these “corporate constitutional rights,” and waking up as many Americans as possible to this crime and its consequences.

We can fight back at every level of government (and you’ll learn that people have been doing just this for decades with increasing success). Taking on this battle can be one of the most effective ways of re--empowering our democracy.

The rebellion has already begun; by the time you finish this book, you’ll know how to join it.

But first, we need to understand exactly how the crime was committed.

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Obama rescues neoliberalism from itself

The following year Barack Obama was elected to the presidency. In his inaugural address he told the American people that markets needed supervision to work.

“Nor is the question before us whether the market is a force for good or ill,” President Obama said, looking into the camera. “Its power to generate wealth and expand freedom is unmatched. But this crisis has reminded us that without a watchful eye, the market can spin out of control. The nation cannot prosper long when it favors only the prosperous.”

Americans who were hopeful that the age of neoliberalism was coming to an end (even if they didn’t know there was a name for it) cheered: Obama’s popularity soared above 60 percent.

Instead of ending neoliberalism, though, Obama expanded it dramatically with the Affordable Care Act, putting the nation’s healthcare needs in the hands of billion-dollar insurance companies and extending the privatization of Medicare through the Medicare Advantage scam that George W. Bush had brought to being.

He refused to regulate the nation’s monopolies, instead extending George W. Bush’s Emergency Economic Stabilization Act and the Troubled Asset Relief Program that poured ever-more money into the pockets of Wall Street banksters.

Advised by notorious neoliberal Larry Summers (formerly Clinton’s Treasury Secretary) and former Wall Street banker Timothy Geitner (as Obama’s Treasury Secretary), Obama passed on the opportunity to re-regulate the banks or push for legislation like a revisited Glass-Steagal to prevent checkbook banks from gambling in the stock market with your and my deposits. Instead, he went with the watered-down Dodd-Frank legislation championed by two noted neoliberal legislators who were both deeply in the pockets of Wall Street banks.[cxiii]

Bankers are still running many of their old scams even as I write these words in 2022.

Meanwhile, President Obama oversaw without objection the explosion of the neoliberal dream of a so-called “gig economy” where companies relabeled their employees as “independent contractors” to avoid insurance, taxes and the regulations and liabilities that come as an employer.

Even his smallest pushbacks against neoliberalism – including an attempt to raise income taxes on the morbidly rich and advance universal pre-K – were shot down by Republicans and neoconservative Democrats in Congress.

Dissatisfied, Americans decided to try the Republicans again.

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George W Bush Pushes Neoliberalism even farther

By the time George W. Bush became president in January 2001 neoliberalism had defeated even the Perot faction of American thought: politicians who opposed it, like Bernie Sanders and Sherrod Brown on the left and Mike Lee and Ron Paul on the right, were dismissed as cranks and outliers trying to stand in the way of progress.

Bush continued the process, with his largest success being the privatization, with the Medicare Modernization Act of 2003, of a large chunk of the nation’s premiere government-funded healthcare program, Medicare.

The new “Medicare Advantage” programs, entirely run by private entities, cost the federal government on average 11% more than Medicare and were given the freedom to deny services to their customers the way health insurance companies have been scamming their customers for generations.[xcv]

I lay this out chapter-and-verse in The Hidden History of American Healthcare, but suffice it to say that by this writing nearly half of the entire Medicare program has now been replace by fully privatized health insurance under the deceptive rubric of “Medicare Advantage” while Medicare itself has been seriously defunded by the transfer of so many billions to the bottom lines of “Advantage” providers.

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Bush also used the excuse of the deregulation of the banking industry in 1999 to look the other way as his morbidly rich donors in the financial services industry created hundreds of exotic new “products” to sell to investors, the most notorious being Collateralized Debt Obligations (CDOs) used to bundle fraudulent home mortgages in with good ones to disguise their provenance and risks.

Bankers like California’s notorious “Foreclosure King” Stephen Mnuchin became fabulously rich, picking up a private jet and multimillion-dollar mansion while the nation’s economy inched further and further out onto thin ice. [xcvi]

Through it all, despite a few warning voices, the Bush administration and the neoliberal-leaning governments of Europe’s largest nations all reassured us that the market operated on its own “magic invisible hand” rules and there was nothing to worry about. Just trust the market and the market-makers. They know what they’re doing.

And, indeed, they did know what they were doing. Just like John Dillinger and Ken Lay did. They extracted literally trillions of dollars out of the US and other western economies and then stood back, feigning helplessness, when it all collapsed in the “Bush Crash” of 2008.

In response to the crisis bankers created, governments around the world shoveled money at those very same bankers and their institutions.

“The total potential federal government support could reach up to $23.7 trillion,” is what Neil Barofsky, special inspector general for the Troubled Asset Relief Program (TARP), reported to Congress in 2008.[xcvii]

While the actual American part of the banker bailout was probably closer to $5 trillion, by 2010 the bankers were giving each other billion-dollar bonuses and diving off the high boards into their money bins.

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It’s almost as if Milton Friedman had planned it; after all, his first step out of academia and into paid shilling for industry and the ultra-rich was to author that notorious 1946 pamphlet for the real estate industry advocating total deregulation of both the real estate business and the banks that offered mortgages.

Bush’s other big neoliberal experiment was with the government of Iraq. His brother Jeb Bush, along with his Defense Secretary Donald Rumsfeld, his Vice President Dick Cheney, and his advisors Paul Wolfowitz, Bill Kristol, and John Bolton had all signed onto the notorious 1998 Project for a New American Century statement calling on then-President Bill Clinton to immediately invade Iraq and expel Saddam Hussein.[xcviii]

As Cheney would later note, Iraq was sitting atop the second-largest single-country reserve of oil in the world, just behind Saudi Arabia. “He sits on top of 10 per cent of the world’s oil reserves,” Cheney said, adding, “He has enormous wealth being generated by that.”[xcix]

While former Haliburton oil company chief Cheney was salivating over the prospect of seizing and selling all that oil, George W. Bush saw a war in Iraq as a way to guarantee his own re-election in 2004.

Back in 1999, writer Mickey Herskowitz, hired by the Bush family to ghost-write Bush’s autobiography A Charge To Keep,[c] explained that Bush told him:

“One of the keys to being seen as a great leader is to be seen as a commander-in-chief. My father had all this political capital built up when he drove the Iraqis out of Kuwait and he wasted it. If I have a chance to invade, if I had that much capital, I’m not going to waste it. I’m going to get everything passed that I want to get passed and I’m going to have a successful presidency.”[ci]

Bush wasn’t much of an ideologue and its unlikely he could have even explained neoliberalism, but his Defense Secretary Donald Rumsfeld was both a student and close personal friend of Milton Friedman and an ardent neoliberal.

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Once Iraq was conquered and Hussein was dead, Rumsfeld put former Kissinger and Associates managing director L. Paul Bremmer III in charge of the country. Bremmer, the wealthy son of the former CEO of Christian Dior, had been educated in the world’s best private schools from Phillips Andover Academy to Yale University to the Paris Institute of Political Studies. He knew the rich and powerful of the world – he was one of them – and had been Rumsfeld’s assistant in the first Bush administration overseeing the first Gulf War against Saddam.

Bremmer followed the Mont Pelerin neoliberal script to the last detail. The Iraqi army was the nation’s largest employer, with over a half-million men drawing a weekly paycheck and each having an AK-47 handy in their homes. Bremmer fired them all, creating an instant and well-armed insurgency of pissed-off formerly middle-class soldiers.

He also shut down almost all of the hundreds of government-owned companies, from those manufacturing steel to machine tools to cement and military goods.

He threw open the country to the world’s predatory corporations, eliminating all tariffs and trade regulations, while standing aside as the nation’s government-run libraries and museums were looted on behalf of wealthy foreign antiquities collectors. All of this was a clear violation of international law that prevents winners in wars from looting the countries they’ve conquered, but neoliberals around the world had always ignored such laws.

Rumsfeld defended the video of looters carrying off 3000-year-old irreplaceable artifacts with the glib, “Freedom’s untidy, and free people are free to make mistakes and commit crimes and do bad things.” When asked if looting was the inevitable consequence of Rumsfeld’s “freedom,” he replied, as CNN reported, “Stuff happens.”[cii]

Bremmer then threw out Iraq’s progressive corporate and individual income taxes that peaked at 45% and replaced them with Milton Friedman’s beloved 15% flat-tax, a huge windfall to Iraq’s wealthy elite but a massive and sudden tax increase for the country’s low-income workers.

He ended Iraq’s laws requiring domestic ownership of major industries, allowing foreigners to buy and own 100% of pretty much anything – from land to oil to businesses – and take up to 100% of their profits out of the country tax-free.[ciii]

After neoliberalism had failed spectacularly in Chile, gutted the American and British middle classes, and had flipped Russia from a brief democracy into a brutal oligarchy, Iraq was to be the final proof that it could work.

Wolfowitz, Bremmer, and neoliberal apologists around the world promised the country would soon flower, as the “free market” lacking government regulation and with minimal taxation would solve all problems from poverty to political corruption to meeting the people’s basic food, housing and safety needs.

It didn’t work out that way.

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Instead of a million flowers blossoming in the soil of neoliberal “freedom,” over three million Iraqis lost their homes and became internal refugees,[civ] nearly a half-million fled the country (those with the wealth to get out), and 288,000 died as a direct consequence of the American invasion.[cv]

And that doesn’t begin to account for generations of trauma and PTSD, destroyed infrastructure and torn-apart families, and the shattering of America’s image and influence around the world.

Twenty years later and the neoliberal project largely abandoned and never mentioned out loud by its champions, Iraq is still staggering, plagued by political instability, disease, and an Iraqi warlord version of the oligarchic political culture neoliberalism always produces.

Neoliberalism blows up in Bush’s face

Meanwhile, back here in America, neoliberal policies brought our government and economic system to its knees in the last year of Bush’s presidency. Banks, investment houses and real estate speculators had been deregulated nine years earlier and used their new “freedom” to essentially rob, rape, and pillage the American financial landscape.

In the process, corrupt financial operations and betting on stocks became a huge part of the American economy.

The greatest damage to America came because loaning, borrowing, and trading money and securities produces absolutely nothing of lasting value to a country. It’s not at all like manufacturing, where applying labor to raw materials produces products that have lasting value.

Instead, unregulated finance extracts massive amounts of cash as commissions and fees for a small number of fabulously wealthy and powerful Wall Street giants, actually reducing resources that could instead be used to manufacture things that do add value for generations.

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But don’t just take my word for it. Jack Bogle was the guy who created the first widely-traded index fund, the Vanguard 500, back in 1976. Although he stepped down as chairman of the company in 1999, he still opines about the state of the economy and, in a moment of extraordinary candor, told reporters for Money magazine in 2015:

“The job of finance is to provide capital to companies. We do it to the tune of $250 billion a year in IPOs and secondary offerings. What else do we do? We encourage investors to trade about $32 trillion a year. So the way I calculate it, 99% of what we do in this industry is people trading with one another, with a gain only to the middleman. It’s a waste of resources.”[cvi]

In 2008 the bill came due for the trillions of dollars speculators, hedge funds, mortgage bankers and other predators in the financial services industry had extracted from the American and world economies.

It started in 2000, after the 1999 neoliberal deregulation of America’s banks: bankers went on a lending spree to would-be homeowners, offering them mortgages with no income or asset requirements (sometimes called “Liar Loans”).

Because this practice was injecting so much new money into the housing market, housing prices were soaring; many of the no-asset home purchasers were average people trying to be real estate speculators, figuring they’d buy a house, hold it for a year or two, and sell it for a solid profit.

“Home Flipping” became a thing.

All across America telephone poles had flyers on them for “real estate seminars” promising to teach average folks how to make money in the housing market just like the billionaire bankers did. It was a national celebration of get-rich-quick grifting.

One of the larger grifts in this marketplace, for example, was Trump University. As the Washington Post noted, Trump’s sales pitch was, “[T]he billionaire had made enough money for himself. Now, he would put his famous brain to work for the little guy.”[cvii]

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The Liar Loans not only let millions of people speculate in the real estate market but also gave an entrée into single-family housing for millions of people whose income and assets would have prevented them from borrowing in a regulated market. As long as the economy was good, though, and they had a reliable income, they could hang on to their first homes.

The banks and mortgage houses took those Liar Loan mortgages, mixed them with “good” assets like mortgages to people with the means to repay their loans, and sold these interest-bearing “products” in the open investment market.

They bribed the credit rating agencies to give them a seal of approval, and banks themselves bought and sold trillions in these “Collateralized Debt Obligations” or CDOs and other exotic “products.”[cviii]

Because they were generally high-interest loans (because of the borrowers’ poor credit ratings), they paid far more than most all other readily available investments. Throughout the first 8 years of the 21^st century they spread into investment portfolios all over the world.

Then came the recession of 2006. The market softened, unemployment went up, and millions were facing foreclosure. Most hung on, driving up credit card or other debt to keep their houses, hoping prices would rise back up enough that they could sell them for what they owed.

That wasn’t to happen.

By 2008, the housing market was completely in the tank and foreclosures had reached the point where the owners of CDOs and other “innovative” investment instruments created out of the 1999 deregulation could no longer ignore the risk of defaults.

January 2008 saw a 57 percent increase in foreclosures over the previous year, and February dropped another 24 percent year-over-year. Resale home prices fell 4.6 percent in January and were down 8.2 percent by the end of February. The system was hemorrhaging cash. [cix]

The biggest problem big investors in CDO’s and other debt instruments had was that, because the market was deregulated and supposedly run by the “invisible hand” of the marketplace, nobody knew exactly how many bad mortgages were buried in these bundles or what kind of a liability they represented as a share of the US’s $12 trillion mortgage market.[cx] Freddie Mac and Fannie Mae alone had taken on $3 trillion in loans all by themselves: the big banks were opaque and, if they knew how much poison they’d packaged, they weren’t telling anybody.[cxi]

Money market funds were heavily invested in these new “products” and tried to unload them as fast as they could…but nobody was buying. Seeing that the funds, which are not federally guaranteed, could fail, investors pulled out cash like there was no tomorrow.

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On September 16^th, the Reserve Primary Fund “broke the buck,” meaning they paid back dollars given them with less than a dollar each. The next day investors pulled a record $172 billion from money market funds, adding to the pressure (normal withdrawals are around $7 billion/day).[cxii]

By the time of the 2008 election, Congress had poured $700 billion into bailing out bankers and the Fed had anted up almost three trillion dollars, between their $1.7 trillion “commercial loan program,” their $540 billion loan to money markets, and their June “Term Auction Facility” loan of $225 billion. The FDIC threw an additional $1.3 trillion into the banking system on November 21^st.

Wall Street bankers (except for Lehman Brothers, the only bank “allowed to fail”) were sighing a huge sigh of relief and hurrying to stash their billions of ill-gotten gains in tax havens overseas.

At the same time, homeowners across America were being thrown out of their houses in a national tsunami of foreclosures that lead an early explosion in homelessness.

Bankster Steve Mnuchin alone would pick up one of the California banks holding some of this debt and throw 36,000 people out of their homes, each foreclosure earning his company a federal bailout payment and earning him the moniker “The Foreclosure King.” This positioned him perfectly for a later job with Donald Trump as the nation’s Treasury Secretary. His profitable, no-risk strategy was being replicated by banks and mortgage brokers all across the nation.

As fully 10 million Americans lost their homes, Americans began to openly question neoliberalism. On my radio program at the time, I openly speculated that 2008 would go down in history as “the year neoliberalism died in America.”

Sadly, I was premature in that proclamation.

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My newest book, Who Killed the American Dream?: The Greatest Political Crime Ever Told is now available for presale from bookstores nationwide. It’s a modern-day telling of the “murder mystery” of how, in 1886, a great crime was committed against America by a cynical court reporter and an on-the-take Supreme Court justice that changed the course of American politics and led straight to Citizens United. It also details the massive ongoing cover-up of this crime and what we can do to fight back.

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Bill Clinton hearts the neoliberal revolution

Texas billionaire Ross Perot jumped into the race to take on the two neoliberal “free traders” George HW Bush and Bill Clinton. If America signed NAFTA, Perot warned, there would be “a giant sucking sound from the south” pulling jobs out of America.

Worse, Perot warned, this would eventually become a national security issue: when we reached the point where we couldn’t make an aircraft carrier or missile without parts from China or another foreign country, our ability to defend ourselves would be severely compromised.

“If we keep shifting our manufacturing jobs across the border and around the world and deindustrializing our country,” Perot said, “we will not be able to defend this great country...”[lxxxvii] And today, as CBS News reports, we’re there: “The hellfire missile – launched from helicopters, jets and predator drones – has been a critical weapon in the war on terror. But the propellant that fires the missile must be imported from China.”[lxxxviii]

The 1992 election represented the first American revolt against neoliberalism: Perot took almost 20 percent of all votes. Bill Clinton was elected with only a 43 percent plurality of the vote.

Perot’s movement aside, by 1993 the Democratic Party had largely embraced a slightly-softer (still allowing for public schools and some social programs) form of neoliberalism.

The American and British groupthink consensus across major political parties was that Freidman and his Mont Pelerin buddies were right: the rich should rule the world, labor unions were a pain-in-the-ass, and government regulation simply stifled innovation.

Everything that could be privatized should be, and stockholder returns should be the only metric business used for decision-making, discarding “old” notions of corporate responsibility to workers, customers, communities and even the institution of the corporation itself. If increasing profits and thus dividends meant screwing workers, producing substandard products, demanding huge tax breaks from or polluting communities, or even breaking up and selling off the company, so be it. Even the Supreme Court was now onboard, having fully embraced Robert Bork’s notion that profits were the singular North Star.[lxxxix]

Reagan’s destruction of the union movement added a critical problem for the Democrats: unions had been their major funding source. Democratic consultant Al From came up with the idea of the Party embracing corporate America and neoliberal ideology to make up for the lost union money; he traveled to Arkansas to pitch it to Governor Bill Clinton, who agreed to run for president on that platform.

From later (2013) wrote a book about the experience and the need for the Party to run and govern on the basis of “economic centrism, national security, and entitlement reform…”[xc]

Democrats had now joined Republicans in the back pocket of American business, although to differentiate themselves they embraced “clean” industries like banking, insurance and tech, leaving money from the “dirty” industries like coal, oil and chemicals to the Republicans.

Clinton embraced with gusto the neoliberal idea that “free trade” was the ultimate way to end wars between nations. In December 1996 New York Times columnist (and billionaire) Thomas Friedman (no relation to Milton) laid out what came to be called The McDonald’s Doctrine, positing that no two nations who each had a McDonald’s would ever go to war.[xci] (In a more recent column, he revises the idea from the Golden Arches Theory of Conflict Prevention to the Dell Theory of Conflict Prevention.)

After all, when nations are economically interconnected, don’t they have an incentive to not bust up that relationship with something as gross as military conflict?

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The idea was an idiocy on its face then and still is today, but it flew. Books were published, articles written, speeches given. Free trade agreements flowed like champagne, while America continued to hemorrhage good paying manufacturing jobs and slid towards becoming a “Do you want fries with that?” service economy.

Clinton also took a meataxe to the nation’s welfare programs, apparently convinced of the conservative message that even survival-level benefits caused laziness -- or he’d decided that buying into that myth was politically useful.

If that premise were true, by the way, it would be a great selling point for taxing all inheritances at 100%. After all, who would want to inflict laziness on their children by leaving them enough money that they don’t need to work?

But, of course, it was just another idiocy promoted by the very rich (who will pass along their wealth to their children without worrying it’ll cause laziness) to justify cutting tax-funded programs for “lower class” folks, particularly people of color, so they can keep their tax dollars in their money bins.

Nonetheless, Clinton proudly declared in a State of the Union speech that he had brought about “the end of welfare as we know it.”

Meanwhile, the Soviet Union had undergone a controlled demolition, guided by the hand of Mikael Gorbachev, who genuinely hoped to turn his nation from a corrupt communist oligarchy into a democratic-socialist success story along the lines of the Scandinavian countries.

Gorby explicitly hoped for Russia to emulate Sweden and become a “socialist beacon for the world,” as described by Marshall Pomer and Lawrence Klein in their book The New Russia: Transition Gone Awry.[xcii]

In December 2015, Louise and I attended a banquet in Moscow with former President Gorbachev, President Putin and a few dozen others. Gorbachev, who had spent hours with my friend and colleague Leila Connors (we made several environmental documentaries together, along with Leonardo DiCaprio) for her movie The Arrow of Time, still hoped for the best.

“Many of these ideas might appear Utopian or unachievable in the context of the present political order,” he’d told Leila a few years earlier when the movie premiered in Switzerland, “and that is precisely because they address the roots of the current issues.”

Nonetheless, when I saw him he looked like a broken man. His project to create a Scandinavian-style democracy had been hijacked by Bill Clinton and other leaders of the G7 countries at a meeting of that group in 1991 when they explicitly told him he must embrace neoliberalism if he wanted western loans to help with his transition project.

Help to keep up the fight!

“Their suggestions as to the tempo and methods of transition,” Gorbachev is quoted in The New Russia, “were astonishing.”

Naomi Klein in The Shock Doctrine quotes the Russian newspaper Nezavisimaya Gazeta, noting at that time that “for the first time Russia will get in its government a team of [neo]liberals who consider themselves followers of Friedrich von Hayek and the ‘Chicago school’ of Milton Friedman.”

After a single year of Friedman’s “reforms,” Klein chronicles the outcome:

“[M]illions of middle-class Russians had lost their life savings when money lost its value, and abrupt cuts to subsidies meant millions of workers had not been paid in months. The average Russian consumed 40 percent less in 1992 than 1991, and a third of the population fell below the poverty line. The middle class was forced to sell personal belongings from card tables on the streets – desperate acts that the Chicago School economists praised as ‘entrepreneurial,’ proof that a capitalist renaissance was indeed under way, one family heirloom and second-hand blazer at a time.”

The country was gutted like a fish, its assets sold off for pennies on the dollar to the men who we now know as “Russian oligarchs,” fabulously rich billionaires who float above the Russian landscape the way Jeff Bezos blasts himself into outer space over America.

In December, 1994 I was working with the German-based international relief organization Salem International and visited their newest project in Kaliningrad, Russia. It brought me face-to-face with the destruction of the Chicago Boys’ neoliberal reforms: vodka was cheaper than potable water, organized crime ran most of the commerce in the city, and the families I visited kept baskets filled with scraps of newspaper next to their toilets to use as toilet paper.

This city, where Immanuel Kant once lived, had disintegrated after its parts had been stripped, monetized and sold off to the highest bidder. Here’s an excerpt from the diary I kept of that trip:

“I landed at about noon on a gray, blustery, raw-cold day in Kaliningrad. ... A once-beautiful old river, now black and fouled with sewage and industrial waste, runs through the city...

Herr Burkhardt took me for an afternoon walk. A cold wind cut through the stone streets, and most of the buildings looked like a typical 19th century (or earlier) European city, although there was no color anywhere. No paint, no signs, no colorful curtains. Everything was gray, from the leaden sky to the grime-covered buildings to the slushy sidewalks and cobblestone streets.

We crossed the river on a long bridge, and walked a few blocks into town, navigating around gaping 2-foot-diameter open manholes in the middle of the sidewalks, opening down into black pools of sewage ten feet below the surface.

The streets were filled with people, bundled against the wind, their faces lined and cracked by weather and hard lives in this dismal place. I saw not a single smile: everybody seemed in a hurry to get somewhere, and few people talked among themselves. ...

Back at Olga’s house, the TV was on in the living room. ...When the show ended, a man’s face filled the screen. He was giving some sort of speech, and his face was twisted with an insane anger. He pounded his fist and shook his finger at the camera, then became soft and soothing in his voice, then began shouting again. He was followed by what was obviously a news anchorwoman, sitting behind a desk, making commentary.

“What’s that?” I said to the room in general.

“Vladimir Zhirinovsky [the extreme right-wing candidate],” said Olga in German. “He’s a candidate in tomorrow’s election, and he said that if he’s elected then we should work more closely with Germany, reestablish our old border with them.”

“Isn’t Poland in between you and Germany?”

“That’s what he means,” Olga said, shaking her head in disbelief. “Get rid of Poland.”

I shivered. ...

Boris Yeltsin won the election and continued his neoliberal reforms with the help of the Chicago Boys, paving the way for President Putin’s rise to power in 2000, finally killing altogether Gorbachev’s Scandinavian hopes. Russia is truly the clearest example of the consequences of full-blown neoliberalism, and Zhirinovsky was their version of Donald Trump, who himself rose to power in America as a backlash against 40 years of somewhat slower and softer neoliberalism here.

Back in America, the zeitgeist of the era was personified by the hot new thing for Democrats to do in the Clinton 90s: make an annual pilgrimage to the World Economic Forum at Davos, Switzerland to rub elbows with the world’s bankers and billionaires. Philanthropy could take care of people’s needs, the neoliberal billionaires asserted, and in his 1996 State of the Union speech Clinton declared, “The era of big government is over.”[xciii]

Taking that theory to its logical next step, in 1999 Clinton signed the Financial Services Modernization Act (FSMA) that unraveled banking regulations dating back to FDR’s Glass-Steagall law that had outlawed the dangerous 1920s practice of banks gambling in the stock or other markets with depositors’ money.[xciv]

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Neoliberalism comes to America

In America it was inflation that opened the door to Milton Friedman’s neoliberalism.

Inflation is usually caused by one of two things: international devaluation or internal dilution of a country’s currency, or widespread shortages of essential commodities that drive up prices enough to echo through the entire economy.

The early 1970s got both, one deliberately and the other as the result of war.

Between 1971 and 1973, President Nixon pulled the US out of the Bretton Woods economic framework that had been put together after World War II to stabilize the world’s currencies and balance trade. The dollar had been pegged to gold at $35 an ounce, and the world’s other currencies were effectively pegged to the dollar.

But the United States couldn’t buy enough gold to support the number of dollars we needed as our economy grew, so on August 15, 1971 Nixon announced to the nation and the world that he was taking the dollar off the gold standard and putting a ten percent tariff on most imports of finished goods into the US to deal with the changes in the dollar’s value relative to other currencies.

The immediate result was the value of the dollar rose as the world breathed a sigh of relief that the “gold crisis” was coming to an end and the dollar would become more portable. But an increased value in the dollar relative to other currencies meant that products manufactured in the US became more expensive overseas, hurting our exports.

At that at that time there were 60,000 more factories in the US than today and Wal-Mart was advertising that everything in their stores was “Made in the USA”[lxix]: exports were an important part of our economy and imports were mostly raw materials or “exotic” goods not produced here like sandalwood from Thailand or French wines.[lxx]

To deal with the “strong dollar” problem, Nixon announced in December, 1971 that the US was devaluing our currency relative to the Japanese Yen, German Mark and British Pound (among others) by 11 percent. It was the first-ever negotiated realignment of the world’s major currencies, and Nixon crowed it was “the greatest monetary agreement in the history of the world.”

But we were still importing more and more goods from overseas, particularly cars from Japan, increasing our trade deficit and hurting American jobs that manufactured goods like cars that competed with the Japanese and the Germans. So in the second week of February, 1973 Nixon did it again, negotiating a further devaluation of the dollar by 10 percent.[lxxi]

While devaluing the dollar against other currencies didn’t have much immediate impact on products grown or made in the US from US raw materials, it did mean that the prices of imports (including oil, which was the primary energy supply for pretty much everything in America) went up.

Over the next decade, the impact of that devaluation would work its way through the American economy in the form of a mild inflation, which Nixon thought could be easily controlled by Fed monetary policy.

What he hadn’t figured on, though, was the 1973 Arab-Israeli war. Because America took Israel’s side in the war, the Arab states cut off their supply of oil to the US in October 1973. As the State Department’s history of the time notes, “The price of oil per barrel first doubled, then quadrupled, imposing skyrocketing costs on consumers and structural challenges to the stability of whole national economies.”[lxxii]

Everything in America depended on oil, from manufacturing fertilizer to powering tractors, from lighting up cities to moving cars and trucks down the highway, from heating homes to powering factories. As a result, the price of everything went up: it was a classic supply-shock-driven inflation.

The war ended on January 19, 1974 and the Arab nations lifted their embargo on US oil in March of that year.[lxxiii] Between two devaluations and the explosion in oil prices, inflation in the US was running red-hot by the mid-1970s and it would take about a decade for it to be wrung out of our economy through Fed actions and normal readjustments in the international and domestic marketplace.

But Americans were furious. The price of pretty much everything was up by 10 percent or more, and wages weren’t keeping pace. Strikes started to roil the economy as Nixon was busted for accepting bribes and authorizing a break-in at the DNC’s headquarters in the Watergate complex. Nixon left office and Jerry Ford became our president, launching his campaign to stabilize the dollar with a nationally televised speech on October 8, 1974.[lxxiv]

Ford’s program included a 5 percent increase in top-end income taxes, cuts to federal spending, and “the creation of a voluntary inflation-fighting organization, named ‘Whip Inflation Now’ (WIN).”[lxxv] The inflation rate in 1974 peaked at 12.3 percent and home mortgage rates were going through the roof.

WIN became a joke, inflation persisted and got worse as we got locked into a wage-price spiral (particularly after Nixon’s wage-price controls ended), and President Ford was replaced by President Jimmy Carter in the election of 1976.

But inflation persisted as the realignment of the US dollar and the price of oil was forcing a market response to the value of the dollar. (An “x” percent annual inflation rate means, practically speaking, that the dollar has lost “x” percent of its value that year.)

The inflation rates for 1977, 1978, 1979 and 1980 were, respectively, 6.7%, 9.0%, 13.3% and 12.5%.[lxxvi]

In 1978, Margaret Thatcher came to power in the United Kingdom and, advised by neoliberals at the UK-based private think tank the Institute of Economic Affairs (IEA), began a massive program of crushing that country’s labor unions while privatizing as much of the country’s infrastructure as she could, up to and including British Airways and British Rail.

She appointed Geoffrey Howe, a member of the Mont Pelerin Society and friend of Milton Friedman, as her Chancellor of the Exchequer (like the American Secretary of the Treasury) to run the British economy. Friedman, crowing about his own influence on Howe and the IEA’s founder Sir Antony Fisher wrote, “the U-turn in British policy executed by Margaret Thatcher owes more to him (i.e., Fisher) than any other individual.”[lxxvii]

The ideas of neoliberalism had, by this time, spread across the world and Thatcher was getting international applause for being the world’s first major economy to put them into place. Pressure built on President Carter to do the same, and, hoping it might help whip inflation, he deregulated the US trucking and airline industries, among others, in the last two years of his presidency.

Ronald Reagan was elected in 1980 and when he came into office he jumped into neoliberal policy with both feet, starting by crushing the air traffic controllers’ union, PATCO, in a single week. Union busting, welfare-cutting, “free trade,” and deregulation were the themes of Reagan’s eight years, then carried on another four years by President George HW Bush, whose administration negotiated the North American Free Trade Agreement (NAFTA).

America was now officially on the neoliberal path, and Friedman and his Mont Pelerin buddies were cheering it on.

By 1982 inflation was down from 1981’s 8.9% to a respectable and tolerable 3.8%; it averaged around that for the rest of the decade. Instead of pointing out that it normally takes a supply-shock inflation and a currency-devaluation inflation a decade or two to work itself out, the American media gave Reagan and neoliberalism all the credit.[lxxviii] Milton Friedman, after all, had made his reputation as the great scholar of inflation and was a relentless self-promoter, appearing in newspapers and news magazines almost every week in one way or another.

Claiming neoliberal policies had crushed over a decade of inflation in a single year, and ignoring that it was just the normal wringing-out of inflation from the economy, Reagan openly embraced neoliberalism with a passion at every level of his administration.

Reagan embarked on a series of massive tax cuts for the morbidly rich, dropping the top tax bracket from 74 percent when he came into office down to 25 percent. He borrowed the money to pay for it, tripling the national debt from roughly $800 billion in 1980 to $2.4 trillion when he left office, and the effect of that $2 trillion he put on the nation’s credit card was a sharp economic stimulus for which Reagan took the credit.

He deregulated financial markets and Savings & Loan (S&L) banks, letting Wall Street raiders walk away with billions while gutting S&Ls so badly that the federal government had to bail out the industry by replacing about $100 billion the bankers had stolen.[lxxix]

“Greed is good!” was the new slogan, junk bonds became a thing, and Mergers and Acquisitions experts or “M&A Artists” who called themselves “Masters of the Universe” became the nation’s heroes, lionized in movies like Michael Douglas’ 1987 Wall Street.

Reagan signed Executive Order 12291 which required all federal agencies to use a cost-benefit estimate when putting together federal rules and regulations. Instead of considering externalities costs (things like the damage pollution does to people or how bank rip-offs hurt the middle class), however, the only “costs” his administration worried about were expenses to industry.

He cut the regulatory power of the Environmental Protection Agency (EPA) and his head of that organization, Anne Gorsuch (mother of Supreme Court Justice Neil Gorsuch) was, as Newsweek noted, “involved in a nasty scandal involving political manipulation, fund mismanagement, perjury and destruction of subpoenaed documents…” leaving office in disgrace.[lxxx]

Meanwhile, Reagan’s Secretary of the Interior, James Watt, went on a binge selling off federal lands to drilling and mining interests for pennies on the dollar. When asked if he was concerned about the environmental destruction of sensitive lands, he replied, “[M]y responsibility is to follow the Scriptures which call upon us to occupy the land until Jesus returns.”[lxxxi] According to Watt’s fundamentalist dogma, any damage to the environment would be reversed when Jesus came back to Earth and “makes all things new.”

Reagan cut education funding, putting Bill Bennett in as Secretary of Education. Bennett was a big advocate of the so-called “school choice” movement that emerged in the wake of the 1954 Supreme Court Brown v Board decision that ordered school desegregation. All-white private, religious, and charter schools started getting federal dollars, public schools had their funds cut, and Bennett later rationalized it all by saying, “If it were your sole purpose to reduce crime, you could abort every black baby in this country, and your crime rate would go down.”[lxxxii]

The Labor Department had been created back in 1913 by progressive Republican President Taft,[lxxxiii] and Reagan installed former construction executive Ray Donovan as its head, the first anti-labor partisan to ever run the Department, a position he had to leave when he was indicted for fraud and grand larceny (the charges didn’t stick) related to Mafia associates he was in tight with. As the Washington Post noted when Donovan died:

“Carrying out Reagan’s conservative agenda, Mr. Donovan eased regulations for business, including Occupational Safety and Health Administration rules disliked by industry. He withdrew a rule requiring the labeling of hazardous chemicals in the workplace and postponed federal employment and training programs, equal opportunity employment measures, and a minimum-wage increase for service workers. His tenure also saw drastic cuts in the department’s budget and staff.”[lxxxiv]

That sort of thing happened in every federal agency throughout the Reagan and Bush presidencies; much of their neoliberal damage has yet to be undone.

Thus, by 1992 Americans were starting to wise up to Reagan’s scam.

Thousands of factories had closed, their production shipped overseas; working-class wages had stagnated since his first year in office while CEO salaries exploded from 29 times the average worker’s salary in 1978 to 129 times average worker wages in 1995 (they’re over 300 times worker wages today);[lxxxv] and union membership had dropped from a third of workers to around 15 percent (it’s around 6% of the private workforce today).[lxxxvi]

The Reagan/Bush administrations negotiated the neoliberal centerpiece NAFTA treaty (although they called it a “trade agreement” rather than a treaty because it couldn’t get past the constitutional requirement for a 2/3rds vote in the senate to approve all treaties) and wanted it signed the following year, in 1993.

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Nationwide Neoliberalism Experiments

The neoliberal ideology of Mises, Hayek and Freidman (et al) has now heavily influenced much of the developed and developing world, creating economic, political, and social disasters from Thailand to South Africa to El Salvador. But its biggest openly-declared national-scale experiments were kicked off in 1973 in Chile, 1981 in the United States, and 1991 in Russia.

In each case, rejecting a democratic government “of, by and for the people” and replacing it with a corporatist government “of, by and for the corporate and wealthy” has produced widespread disaster.

There is literally not one single example of any country in the world that put into place neoliberal policies that hasn’t turned into a violent police state (Chile), devasted its own working class while producing a bumper crop of billionaires (the United States and the United Kingdom), or both (Russia).

Milton Friedman Hearts General Pinochet

One of the most famous examples of neoliberal shock to a nation’s system came in Chile half a century ago.

In 1971, Chile accounted for 20 percent of the world’s known copper reserves; copper was then the world’s most valuable commercial metal (iron was #2) and represented fully three-quarters of that nation’s export earnings.[liv] [lv] And those earnings represented only a small portion of the actual value of the copper Chile exported because three massive American companies, Anaconda, Kennecott, and Cerro (referred to by Chileans as the Gran Minería) claimed to own roughly 80 percent of all that nation’s copper, remnants of 19^th century US claims to the mines.

The Chilean people had long chafed under this foreign ownership and exploitation of the nation’s single largest asset, as well as the way these foreign companies treated Chilean workers and miners.

Under President Frei Montalva through the 1960s the country negotiated a gradual and partial purchase of about half of the mines from the companies, but there was still widespread popular discontent around the issue.[lvi] Imagine how Texans might feel, for example, if 80 percent of all the oil and natural gas in that state was owned by Mexican companies and shipped to Mexico without any reimbursement other than paying taxes to the state of Texas.

As a result, Salvador Allende Gossen was elected president in 1970, after campaigning on fully nationalizing what copper was left in the mines (20% of the world’s reserves). The legislation to do this was presented to the country’s parliament in 1971 and overwhelmingly passed, with even the far-right National Party throwing in all their votes.

A Marxist, Allende had already nationalized the country’s banks by simply purchasing all the bank’s stock on the open market at competitive prices. Over 3 years he nationalized a total of 91 industries, increasing wages and lifting substantial portions of the working poor out of poverty.

On October 28^th 1971 Allende opened a special tribunal in Santiago to determine how much Chile should reimburse the Gran Minería companies. After public hearings, they determined that the companies had done so much damage to both the mines and Chile’s working people and economy that they should pay Chile for some of the copper they’d recently taken out of the country: Kennecott owed Chile, they said, $310 million; Anaconda owed them $78 million; and Cerro, which had been less exploitative of Chilean workers and resources, would receive $18 million from the Chilean state.[lvii]

This set off fireworks in Richard Nixon’s White House, with Henry Kissinger and Nixon’s CIA beside themselves. Nationalization of a country’s natural resources was, they believed, the first step down the road toward total communism, even though Socialist Allende was a pragmatic politician with no intention of disrupting most of the rest of his country’s industries. Capitalism was generally fine with Allende, so long as was Chilean-owned, paid workers well and acted responsibly in the nation’s interest.

But the pressure was on from the copper giants and, when Allende also took the nation’s telecommunications system away from American-owned International Telephone & Telegraph (ITT), which owned 70 percent of the system, Nixon decided to act.

As The New York Times reported in July of 1973:

“The International Telephone and Telegraph Corporation submitted to the White House last October an 18‐point plan designed to assure that the Government of Chile’s Marxist president, Salvador Allende Gossen, ‘does not get through the crucial next six months.’ …

“The I.T.T. plan called for extensive economic warfare against Chile to be directed by a special White House task force, assisted by the Central Intelligence Agency; the subversion of the Chilean armed forces; consultations with foreign governments on ways to put pressure on the Allende regime, and diplomatic sabotage.”[lviii]

Nixon authorized $10 million for a covert operation in Chile, specifying that the US Embassy in Santiago was to know nothing about it.[lix]

Allende was tremendously popular in Chile. While Richard Nixon had been elected president in 1972 with the votes of only 35 percent of eligible American voters, Allende’s party had won 37 percent of the 1970 popular vote. He was then elected president by an overwhelming majority in the Parliament, and 800,000 people – one tenth of the entire population of Chile – showed up in Santiago for a huge celebration.

Nixon, Kissinger, and the CIA decided to take action, and launched a campaign against Allende that included economic pressure and an alignment with the Chilean military through a general who’d led the so-called Nazi Cell within the Chilean army, firing on and killing striking workers in 1967. General Pinochet had “been several times to the U.S. Southern Command schools in the Panama Canal Zone and has served as military attaché in Washington,” having famously said, “The army’s duty is to kill.” [lx]

On September 11^th 1973 – a 9/11 that Chileans claim as their own – General Augusto Pinochet rolled his tanks and led his soldiers into Santiago while the army and air force bombed the presidential palace. The attack was preceded by hundreds of truckers (some funded and guided by IT&T and the CIA) blocking parts of the city for weeks, shutting down commerce to protest the leftwing tilt of the Allende government.[lxi]

President Allende gave a final address to the nation via radio, then, seeing where things were heading, shot himself in the head.

The violent coup was a shock to Chile. The country had one of the most advanced democracies on the continent, having 160 years of elected governments, the most recent run of democracy in the country lasting 41 years until Pinochet and the CIA took it down.

But Pinochet and the CIA had done their homework; the entire Chilean military went along with the coup. They then proceeded to round up the opposition, arresting and imprisoning over 13,000 people who were seen as allies and supporters of the Allende government. Thousands were taken to the National Stadium, where many were tortured and hundreds were executed. As Rupert Cornwall noted in The Independent, those numbers didn’t even include the “200,000 people who were forced into exile to escape persecution or worse.”[lxii]

By way of intimidating any Chileans who may think about joining opposition to Pinochet’s government, the military routinely left mutilated bodies on roadsides and in the country’s drainage and irrigation canals.

As The New York Times noted when Pinochet died:

“[D]uring his rule, more than 3,200 people were executed or disappeared, and scores of thousands more were detained and tortured or exiled. …

“The press was censored, and labor strikes and unions were banned. A fearsome security apparatus known as the National Intelligence Directorate, or DINA, persecuted, tortured and killed Pinochet opponents within Chile and sometimes beyond its borders. A government-commissioned report issued in 2004 concluded that almost 28,000 people had been tortured during the general’s rule. …

“Tens of thousands of Allende sympathizers were rounded up and brutally interrogated. A majority of the killings took place in the first three months, long after resistance had ended. In most cases, prisoners from a slum or agrarian community would be executed as a means of terrorizing their neighbors into accepting military rule. The killings were often cynically, and falsely, justified as cases in which prisoners were shot while trying to escape. ”[lxiii]

The blank slate of a new Chile offered the perfect laboratory for Milton Friedman’s “Chicago Boys” to try out their exciting new neoliberal experiment. With encouragement from Nixon’s administration, Pinochet brough in a group of economists who’d studied under Friedman and his acolytes, including Chilean economist Sergio de Castro.

They privatized most of the industries Allende had nationalized, threw open the nation’s retail systems to foreign-made products, abandoned wage and price regulations and labor protections, and increased military spending while cutting overall government spending by 10 percent. Pinochet even privatized the nation’s social security system, turning it over to the newly-privatized banks.

The result was an official 375 percent rate of inflation in 1974 (the highest in the world at that time) as cheap imports flooded the country, factories shut down, and workers and families were thrown onto the streets. Food and other necessities were estimated to have gone up as much as 1000 percent in price as malnutrition and hunger haunted the nation’s children.[lxiv]

The Chicago Boys were in a crisis as their experiment seemed to be collapsing all around them, so they convinced Pinochet to bring Milton Friedman himself to Chile to encourage people to continue with the Grand Experiment.

In Friedman’s memoir co-authored with his wife, Two Lucky People, he describes what he laid out to the Chilean people during his March, 1975 visit. “If this shock approach were adopted,” he wrote, “I believe it should be announced publicly in great detail, to take effect at a very close date.”

Pinochet’s 10 percent cut in government spending was way too timid, Friedman thought. Instead, he wrote, it should include:

“A commitment by the government to reduce government spending by 25 percent within six months, the reduction to take the form of across-the-board reduction of every separate budget by 25 percent, the personnel separations [firings of government employees] to take place as soon as possible…”

This gutting of the Chilean government wouldn’t really have much impact on the average person, Friedman said. “The discharge of present government employees will not reduce output but simply eliminate waste – their discharge will not mean the production of one fewer pair of shoes or one fewer loaf of bread.”

Betraying a certain self-consciousness, he added, “[S]ome of the poorest classes will be affected and whether they are or not, the program will be blamed for their distress.”

Summarizing his message to Pinochet and the Chilean people, Friedman notes, “Such a shock program could end inflation in months and would set the stage for the solution of your second major problem – promoting an effective social market economy.”

The problems with Chile’s economy two years into the Chicago Boy’s and Pinochet’s grand experiment were not at all the fault of Friedman’s neoliberal prescription, he wrote.

“This problem is not of recent origin. It arises from trends toward socialism that started 40 years ago and reached their logical – and terrible – climax in the Allende regime. You have been extremely wise in adopting the many measures you have already taken to reverse this trend.”

Pinochet took it to heart and by 1980 public spending under Pinochet was half what it had been when he seized power. But the economy was still in crisis.

“Undeterred,” Naomi Klein writes in Shock Doctrine, “Pinochet’s economic team went into more experimental territory, introducing Friedman’s most vanguard policies: the public school system was replaced by vouchers and charter schools, health care became pay-as-you-go, and kindergartens and cemeteries were privatized. Most radical of all, they privatized Chile’s social security system.”

Ironically, Klein notes, “The only thing that protected Chile from complete economic collapse in the early eighties was that Pinochet had never privatized Codelco, the state copper mine company nationalized by Allende. That one company generated 85 percent of Chile’s export revenues, which meant that when the financial bubble burst, the state sill had a steady source of funds.”[lxv]

In the end it had all been a futile exercise, as The New York Times noted in Pinochet’s obituary noted in December, 2006:

“But by the time of his death, even some of those economic victories had been called into question. The privatizing of Chile’s social security system, in particular, has come under attack as unjust and is undergoing revision. And across Latin America, many of the countries that had adopted similar reforms are reversing some of them, responding to a growing wave of popular, leftist anger over untrammeled foreign competition and unequal distribution of wealth.”[lxvi]

The neoliberals still largely control Chile, although they’ve become more like Bill Clinton than Augusto Pinochet. But the results are visible. Chile has Latin America’s top GDP per capita but that income and wealth is hardly well distributed; its poverty level is even higher than that of Brazil.

As economic scholar Branko Milanovic note in November 2019, “The bottom 5 percent of Chile’s population have an income level that is about the same as that of the bottom 5 percent in Mongolia. The top 2 percent enjoy an income level equivalent to that of the top 2 percent in Germany. … Chile is the country where billionaires’ share, in terms of GDP, is the highest in the world…The wealth of Chile’s billionaires, compared to their country’s GDP, exceeds even that of Russia’s.”[lxvii]

In his book The Pinochet File, Peter Kornbluh writes:

“The military regime’s problems began in mid-1982 when the country suffered its worst economic recession since the Great Depression. Gross national product plummeted by 14 percent; unemployment rose to 30 percent. Chile’s foreign debt reached $19 billion, then the highest per-capita debt in the world. The ‘economic miracle’ created by the University of Chicago-trained students of free market guru and regime advisor Milton Friedman was discredited.”[lxviii]

Although neoliberal “scholars” and think-tanks funded by American rightwing billionaires have gone to astonishing lengths to try to portray Friedman and Pinochet’s experiment with neoliberalism a success (just check the internet: there are 20 praising them for every one criticizing them), the simple reality is that the Chilean experiment, the world’s first real try at neoliberalism, failed utterly…and killed a lot of people in the process.

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Note: Yesterday, I accidentally sent out today’s book excerpt, so today I’m sharing with you a post that I posted on my non-politics site, WisdomSchool.com. I hope you find it useful/interesting. —Thom

My father died in stages, the way most people do, and the four of us boys — me and my three brothers, our wives beside us — didn’t know what we were watching.

He’d had a stroke and couldn’t speak or meaningfully move for the week or so before he died; we didn’t know what he was feeling. We didn’t know what to say, or whether to say anything at all, whether to hold his hand or give him space, whether the grimace on his face was pain or something we were misreading entirely.

We didn’t know why he’d suddenly seemed so alert for a day, and we didn’t know what it meant when that passed. We were well-educated, reasonably worldly adults with decades of life experience between us, and we stood around that bed like children who’d wandered into a room where the grownups were speaking a language none of us had ever been taught.

I’ve thought about that a lot over the years. Not with guilt, exactly, though some of that is in there too. Mostly I’ve thought about it as a kind of cultural failure; a thing our society stopped teaching somewhere along the way and never bothered to replace.

For most of human history, people died at home, surrounded by family and neighbors who’d seen it before, who knew the signs, who understood the arc of it. Death was something a community witnessed together and held together.

Then we moved it into hospitals, handed it over to professionals, and quietly lost the knowledge that ordinary people once carried as a matter of course. Now we’re shocked, disoriented, and grief-stricken in ways that might be at least partly unnecessary, if only someone had thought to tell us what was coming and what it meant.

That’s why a piece published this month in the Washington Post was so meaningful to me. Written by Ashley Abramson, it’s about death doulas, a profession that barely existed twenty years ago and is now growing fast enough that the International End-of-Life Doula Association has trained nearly 6,500 doulas worldwide.

A death doula is a non-medical companion who provides emotional, spiritual, and practical support to people who are dying, and to the families around them. As Kristen Patterson, a death doula and end-of-life planner in Northern Virginia, puts it, a death doula is “a calm, compassionate presence who can be there for dying people and their loved ones in their final moments.”

They can read aloud, play music, advocate with medical providers, help navigate paperwork and final arrangements, and simply stay present in ways that hospice nurses — stretched thin and focused on clinical care — often can’t. People don’t always realize that hospice care isn’t 24/7, Patterson notes; it certainly wasn’t in our case (Dad died at home). A death doula can be there as much as the family needs.

But what I found most valuable in Abramson’s piece wasn’t the description of the role itself. It was the specific things that death doulas, from their long experience at bedsides, have learned about the dying process that most families simply don’t know going in. This is the kind of knowledge that can transform a terrifying experience into something that still holds space for love and even peace.

The first thing the doulas want you to know is that dying can be peaceful. Diane Button, a death doula in Northern California and the author of What Matters Most: Lessons the Dying Teach Us About Living, puts it simply: “Just like the body knows how to be born, it knows how to die.”

For people who’ve been living for months or years in bodies racked by illness, the transition can actually come as a relief. Jill Schock, founder of Death Doula LA, told the Post that many people are relaxed at the end, because dying feels better than continuing to live in a body that’s been suffering.

That’s not what most of us picture when we imagine death, but it’s what people who sit with the dying actually see. And Button adds that the most common regrets she witnesses aren’t about things left undone — vacations not taken, money not earned — but about things left unsaid. If you can get to a place of peace with your relationships before that time comes, the dying itself tends to go more gently.

The second thing the doulas want you to understand is that the dying person can still participate in shaping that experience. Even in a hospital room, you can fill the space with what matters: favorite music, beloved objects, the people and even the pets you love.

Erica Reid Gerdes, founder of Waxwing Journeys in Chicago, describes a client whose husband found real comfort in being able to play music from his wife’s favorite musical and read her favorite books to her in those final days. She was unresponsive by then, but as Reid Gerdes says, “We knew she could still hear.” That’s not a small thing. That’s everything.

Third: death doesn’t need to be painful. Many of us carry images of painful deaths we witnessed in earlier generations, but modern hospice care is specifically designed to manage symptoms including pain.

Part of a doula’s job is to make sure the dying person has adequate medication and isn’t suffering unnecessarily. And medication does something else, too — it can calm what’s called terminal agitation, something my family saw with Dad and had absolutely no framework for understanding.

When someone is actively dying, the shutting down of organs can affect brain function in ways that cause the person to pick at their clothing, claw at their bedsheets, or seem frightened and restless.

Seeing that in someone you love is alarming, even traumatic, if nobody has told you it’s a known and manageable part of the process. It has a name. It can be treated. You’re not watching your father suffer some unique and inexplicable torment: you’re watching something that happens, that doulas and hospice nurses have seen many times, and that medication can ease.

Fourth, and this one is critically important: it’s normal, even expected, for a dying person to stop eating and drinking near the end. The body simply needs less energy. Swallowing becomes too taxing. The Post article makes the point explicitly — you don’t need to urge someone who’s actively dying to eat or drink. It doesn’t deprive them the way it would deprive a healthy person.

Families often feel guilty about this, or frightened by it, and push food and water when the body is trying to do what it knows to do. A doula can gently explain that letting go of that particular effort is itself an act of love.

And fifth — this is the one I keep returning to when I think about those last days with my father — there’s a phenomenon called terminal lucidity, or an end-of-life rally. In the days just before death, many dying people experience a sudden surge of energy and clarity. After days of not talking much or eating, they perk up. They seem like themselves again.

Families often mistake this for improvement, for a turn in the right direction, and the hope it kindles makes what follows all the more devastating. What doulas know, from having witnessed it over and over, is that this rally is often the body’s final gathering before it lets go. It isn’t a sign of recovery. It can be a gift — a last real conversation, a last moment of connection — if you know how to receive it as such rather than as cause for false hope.

I wish someone had told us all of this before we walked into that room. I wish someone had sat us down and said: here’s what’s happening, here’s what to watch for, here’s what it means, here’s how you can be present for him rather than just frightened beside him.

That’s what a death doula does. That’s the knowledge that used to live inside communities and families and has largely been lost, and that a growing number of remarkable people are now working to restore.

INELDA and the National End-of-Life Doula Alliance both maintain directories where you can find certified doulas in your area. Death doulas are generally not covered by insurance, which is a policy failure worth fighting about separately, but the field is having conversations about Medicare reimbursement and pro bono work for those who can’t pay. If the financial barrier is real for you, ask; many doulas offer sliding scales or even volunteer their time.

But even if you’re nowhere near this moment in your own life, I’d urge you to read Abramson’s piece in the Post, and to have the conversation with the people you love before it becomes urgent. Talk about what you’d want. Ask what they’d want. Write it down. The conversation itself is an act of love, and it costs nothing except the willingness to be honest about the one thing none of us can avoid.

My father never got to tell us what he wanted, and we never really knew how to ask. That’s a quiet regret I carry. You don’t have to carry the same one.

If this piece meant something to you, please share it with someone who might need it: a sibling, a grown child, a friend whose parent is aging. And if you’ve had experience with a death doula, or wish you had, I’d love to hear your story in the comments.

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Neoliberalism Goes to Work

Neoliberalism has a few primary tenets that are easily identified and make it unique from libertarianism, objectivism and the “conservative” economic policies of the United States in the years prior to the neoliberal Reagan Revolution of 1981. They include beliefs that:

· Controlling inflation is the most important job of federal economic regulation and austerity (a lack of government participation in the lives of its people, particularly in any supportive way) is the best way to get there

· National economies must be deregulated because the market is smarter than government agencies or bureaucrats

· State-owned enterprises, from natural monopolies like city-run utilities and air-traffic control to schools and programs like Social Security and Medicare, must all be privatized; all “welfare” programs must end

· Governments must be shrunk radically, both to decrease their power and to “liberate” corporations and individuals of great wealth to work their “market magic”

· Taxes should be cut to the bone; if the “beast of government” can’t be shrunk, it must be starved

· Markets shouldn’t be centered in or favor any particular nation: the entire world is the “free market” stage on which corporations and morbidly rich capitalists must be free to work their magic

· Property rights are more important than human rights, and racial, religious or gender discrimination or their attendant economic inequalities are not problems to be solved by governments but by “free markets” and the people who dominate those marketplaces

Out of these core tenets come a group of corollaries which, while not often articulated publicly, are the plainly visible outcome of the rapid imposition of neoliberalism. We see these behavior patterns repeated whenever neoliberalism seizes a country, whether it be modest neoliberalism like in the US and UK or “shock neoliberalism” as was imposed in Chile, Iraq and Russia:

· Markets (capitalism) are superior to votes (democracy) so “all necessary steps” are justified to impose neoliberalism on “welfare state” democracies even when the majority of citizens oppose it

· While there can be barriers to the free movement of people between nations, there should be no barriers to the corporate “free trade” movement of goods or money

· Any involvement of government in the lives of its citizens outside of law enforcement and a defensive military inevitably leads to a loss of “freedom” for corporations and the very wealthy and therefore should be ended or privatized

· The family is the best metaphor for governance, with a strong male leader who can overcome the inevitable resistance of what Ayn Rand (who attended a later Mont Pelerin meeting) called “the moochers,” using clear lines of authority and long-established gender roles

· The “welfare state” must be ended; it’s inherently violent and coercive because it’s paid for by taxes taken by the threat of government violence (guns, jails) from well-off people and it also destroys “incentive to work” by providing for low-income people’s basic needs

· Even government functions as widely accepted as licensing physicians are inappropriate interventions in a “free market” (which is why Rand Paul created his very own ophthalmologic “board” to certify his unused medical license)

· Even fascism and oligarchy (as practiced in Chile and Russia on the advice of Milton Friedman’s “Chicago Boys” neoliberals who helped reorganize the economies of both countries) are acceptable alternatives to “welfare state democracy”

· Competition, not cooperation, is the defining characteristic of all truly important human interactions; winners should be celebrated and losers ignored

· Inequality is a sign that society is working as it should because the market rewards the most competent and punishes or leaves behind those not able or willing to carry their own weight

· “Citizenship” is secondary; the citizens of a country should instead be seen and treated as “consumers” because the economy is more critical than the state

· Monopolies are indicators of great efficiency in meeting the needs of the market and shouldn’t be feared or regulated

· Labor unions impede corporate management’s ability to make unilateral decisions and thus are antithetical to a freely functioning economy and a “free” nation

· Controlling inflation is more important than preventing unemployment

· Tax havens and other ways for wealthy people and corporations to avoid “paying their fair share” are an economic and social good because they simply reward hard work and innovation while denying resources to “the beast” of government

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Milton Friedman

The American among the Three Musketeers of neoliberalism was Milton Friedman, who taught for years at the Chicago School of Economics and has become a figure of cult worship on the economic and political right in America.

He was a speechwriter for Barry Goldwater’s 1960 campaign for president, and a formal advisor to, among others, Richard Nixon, Ronald Reagan, Margaret Thatcher and Donald Rumsfeld (who he pushed Reagan to take on as his VP instead of GHW Bush in 1980).[xli]

Friedman was the functional theologian among the three; he absolutely believed that there was a near-mystical power to unregulated markets and that virtually any sort of governmental intervention in or regulation of the marketplace produced economic distortions that prevented capitalism from working its magic.

When, in his first inaugural address on January 20, 1981, President Reagan said, “Government is not the solution to our problem, government is the problem,” he was merely echoing Friedman.[xlii]

Twenty years earlier, Friedman had watched John F. Kennedy give his inaugural address and cringed when Kennedy hit his most memorable high point.

“In the long history of the world,” Kennedy said, “only a few generations have been granted the role of defending freedom in its hour of maximum danger. I do not shrink from this responsibility — I welcome it. I do not believe that any of us would exchange places with any other people or any other generation. The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it — and the glow from that fire can truly light the world.

“And so, my fellow Americans: ask not what your country can do for you — ask what you can do for your country.”[xliii]

Kennedy’s speech sent Friedman into such a paroxysm of fury that he opened his 1962 book Capitalism and Freedom by attacking it on page one.

“In a much quoted passage in his inaugural address,” Friedman writes in the opening paragraph of his book, “President Kennedy said, ‘Ask not what your country can do for you – ask what you can do for your country.’

“Neither half of the statement expresses a relation between the citizen and his government that is worthy of the ideals of free men in a free society. The paternalistic ‘what your country can do for you’ implies that government is the patron, the citizen the ward, a view that is at odds with the free man’s belief in his own responsibility for his own destiny. The organismic, ‘what you can do for your country’ implies the government is the master or the deity, the citizen, the servant or the votary.”[xliv]

Friedman’s devotee Margaret Thatcher famously told Women’s Own magazine in 1987, “And, you know, there is no such thing as society. There are individual men and women, and there are families, and no government can do anything except through people, and people must look to themselves first.”[xlv]

She got it from Friedman’s 1962 book Capitalism and Freedom, whose next sentence after his anti-Kennedy rant was: “To the free man, the country is the collection of individuals who compose it, not something over and above them.”

If it sounds like they’re both echoing Jefferson in saying that a government should only function by “the consent of the governed,”[xlvi] they very much are not.

If the “governed” want a social safety net, for example, or want Social Security, a national health care system, or unemployment insurance then, both Friedman, Thatcher and today’s American Republican Party argue, that is something they should be denied because it will lead to communism (Mises/Friedman) or Naziism (Hayek).

Neoliberalism, instead, explicitly demands a “free market” system where all social needs are met by the magical marketplace and the morbidly rich who control it rather than by people banding together and taxing themselves to provide such benefits through government. No matter what percentage of the population likes those “free” things, they all lead, neoliberals will tell you, to bondage.

As Friedman wrote in the paragraph following his anti-Kennedy rant, “The free man will ask neither what his country can do for him nor what he can do for his country.”

Even the most kinds of basic government regulation that most people want will destroy “freedom,” Friedman argued, saying, for example, that even licensing doctors to practice medicine is a step too far.

In his chapter on Occupational Licensure, Friedman writes, “The medical profession is one in which practice of the profession has for a long time been restricted to people with licenses. Offhand, the question, ‘Ought we to let incompetent physicians practice?’ seems to admit of only a negative answer. But I want to urge that second thought may give pause.”

He then goes on to rant about how licensure isn’t about protecting the public but about greedy elites trying to keep “free people” from doing whatever they want while keeping the income for doctors high. This applies, Friedman says, for everything from plumbers’ unions to the AMA.

“The American Medical Association is perhaps the strongest trade union in the United States,” he writes. “The essence of the power of a trade union is its power to restrict the number who may engage in a particular occupation. This restriction may be exercised indirectly by being able to enforce a wage rate higher than would otherwise prevail. If such a wage rate can be enforced, it will reduce the number of people who can get jobs and thus indirectly the number of people pursuing the occupation. … the American Medical Association is in this position.”[xlvii]

And if there’s anything that Milton Friedman wanted to destroy it was trade unions and the government regulation that made it possible for them to legally withstand often-violent assaults from employers.

Along those same lines, in 1946 Friedman got into (metaphorical) bed with Herbert Nelson, “the chief lobbyist and executive vice president for the National Association of Real Estate Boards, and one of the highest paid lobbyists in the nation” and a co-founder of the Foundation for Economic Education (FEE), which invented the Libertarian Party as a political rationale to deregulate the real estate industry. [xlviii]

No fan of actual government, at least as understood by most Americans, Nelson famously said, “I do not believe in democracy. I think it stinks. I don’t think anybody except direct taxpayers should be allowed to vote. I don’t believe women should be allowed to vote at all. Ever since they started, our public affairs have been in a worse mess than ever.”[xlix]

Friedman co-wrote a booklet for Nelson’s FEE trashing the idea of rent controls titled Roofs and Ceilings. FEE had amassed a multi-million-dollar war chest, according to author Mark Ames, and while the amount Friedman was paid for his work (the FEE ordered a half-million copies printed) has never been disclosed, it represented Friedman’s entrée into the world of big business, which embraced him with vigor.

Friedman jumped right into the fray on behalf of big business, repeatedly arguing that when a corporation put social responsibility over profits it was engaged in the most wicked form of socialism. Regardless of the harm to the environment, workers, society or even democracy, any legal thing a corporation did to increase its profits was necessary to prevent collectivist communism from emerging in America.

As he wrote for the New York Times in 1970:

“[T]he doctrine of ‘social responsibility’ taken seriously would extend the scope of the political mechanism to every human activity. It does not differ in philosophy from the most explicitly collective doctrine. It differs only by professing to believe that collectivist ends can be attained without collectivist means. That is why, in my book Capitalism and Freedom, I have called it a ‘fundamentally subversive doctrine’ in a free society, and have said that in such a society, ‘there is one and only one social responsibility of business--to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.’”[l]

Friedman also believed that because most citizens of developed countries liked their governments regulating things that affected their safety and providing them with a larger social safety net, it’s necessary to either use natural disasters or create crises to bring about the unpopular imposition of neoliberalism. As he wrote in the preface to the 1982 edition of Capitalism and Freedom:

“There is an enormous inertia – the tyranny of the status quo – in private and especially government arrangements. Only a crisis – actual or perceived – ​produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around. That, I believe, is our basic function: to develop alternatives to existing policies, to keep them alive and available until the politically impossible becomes politically inevitable.”

Thus was born what author Naomi Klein famously termed “The Shock Doctrine,” the title of her seminal and bestselling 2007 book,[li] laying out how giant corporations took advantage of a wide spectrum of crises, natural and man-made, to eliminate the socially protective functions of government and replace them with neoliberal rule by the rich and the corporate.

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Epilogue

Trump isn’t the first Republican president to have seized the White House by fraud. In fact, the historical pattern is far more disturbing: every Republican president since Eisenhower has either directly stolen the presidency or inherited their position from someone who did.

Nixon started this treasonous tradition in 1968. While President Johnson was desperately working to end the Vietnam War, Nixon secretly sent envoys to persuade South Vietnamese leaders to boycott peace talks, promising them better terms after his election. Johnson discovered this sabotage when the FBI brought him the wiretaps; he confronted Nixon directly, calling it what it was: “This is treason.”1 Nixon’s scheme worked, however, prolonging the war that killed an additional 22,000 Americans and over a million Vietnamese. And Johnson took this crime to his grave; his library didn’t release the tapes for decades.

The pattern continued with Reagan in the election of 1980. As recently confirmed by former Texas House Speaker Ben Barnes, Reagan’s campaign struck a deal with Iran’s Ayatollah Khomeini to keep fifty-two American hostages captive until after the election, deliberately sabotaging President Carter’s negotiations for their release.2 The hostages were freed the very minute Reagan was sworn in, and his administration later secretly sold weapons to Iran (leading to the Iran-Contra scandal), thus keeping his corrupt bargain.

George H. W. Bush leveraged Reagan’s illegitimate presidency to get into the White House himself, and then used Attorney General Bill Barr to shut down the Iran-Contra investigation by pardoning six key figures before they could implicate him.3

The Supreme Court handed George W. Bush the presidency in 2000 by halting Florida’s recount, despite Gore winning the popular vote by over 500,000 ballots. A later investigation by major newspapers confirmed Gore would have won Florida under any fair counting standard.4 And let’s not forget that Bush’s brother, Florida Governor Jeb Bush, purged at least 57,000 mostly Black voters from the rolls just months before the election that was “decided” by fewer than 600 votes.5

Trump continued this tradition in 2016, benefiting from voter suppression orchestrated by Republican secretaries of state and Kris Kobach’s Interstate Crosscheck program that purged millions of legitimate voters—mostly people of color—from the rolls.6 He also benefited from Russian interference through social media manipulation, as documented by Robert Mueller’s investigation.7

Finally, Trump’s payment to silence Stormy Daniels—the crime that Manhattan DA Alvin Bragg successfully prosecuted, leading to Trump’s thirty-four felony convictions for election fraud—was crucial to keeping Trump’s candidacy afloat after the “grab ’em by the pussy” scandal. Without those illegal payoffs violating campaign finance laws and keeping the Stormy Daniels and Karen McDougal stories under wraps, Trump almost certainly would have lost to Hillary Clinton.

America has ignored GOP crimes to seize the White House for far too long. Ford’s pardon of Nixon set a destructive precedent of presidential immunity that has echoed through decades, leading to packed courts, unnecessary wars, massive tax cuts for billionaires, and the gutting of America’s middle class.

And now it’s been amplified by six Republicans on the Supreme Court ruling that Trump can commit crimes while in office with relative impunity, an immunity that he’s apparently reveling in.

It’s time to break this pattern and finally hold at least one (convicted) criminal Republican president accountable.

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Hope Is a Discipline

In dark times, hope isn’t a passive emotion: it’s a discipline, a practice we must cultivate daily through action and solidarity, a discipline that keeps us moving forward no matter how hard things get. It keeps us grounded and focused on a positive future.

Mariame Kaba, the prison abolitionist and organizer, puts it perfectly: “Hope doesn’t preclude feeling sadness or frustration or anger or any other emotion that makes total sense. Hope isn’t an emotion, you know? Hope is not optimism. Hope is a discipline. . . . we have to practice it every single day.”26

Given that the enemies of democracy and advocates of authoritarianism are massively well-funded, have been liberated by Republicans on the Supreme Court, and control a large part of our media and social media infrastructure, the path forward won’t be easy. There will be setbacks, moments of despair, and very real dangers. But if history tells us anything, it’s that people facing far worse odds have repeatedly and successfully defended or even brought into being (as our Founders did) democracy against authoritarian threats. If South Koreans could defend their democracy against corruption, if Chileans could end Pinochet’s brutal regime, if South Africans could dismantle apartheid, if America could prevail against the fascists of the Confederacy, then we modern Americans can certainly protect our democratic institutions.

In the famous words of anthropologist Margaret Mead: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”

The question isn’t whether we can defeat authoritarianism: history both proves that we repeatedly have and that, going forward, we can. The question is whether we will, like our forebearers, again muster the courage, wisdom, and solidarity to do so.

Democracy isn’t just a system of government: it’s a moral commitment to human dignity, equality, and freedom handed down to us by Indigenous people (as I detail in The Hidden History of American Democracy), preserved by generations of Americans willing to fight and die for it. Its defense isn’t just political; it’s profoundly personal and the work that today falls to you and me. Thus, each of us must decide what role we’ll play in this defining struggle of our time.

As you close this book, I hope you’ll carry not just an understanding of the threat we face, but a deepened commitment to the values of democracy that are so worth fighting for, along with a renewed and practical knowledge of how to join that fight effectively.

The future isn’t yet written. It’s created, day by day, via our collective choices. This is why it’s so imperative that each of us make choices that our grandchildren will thank us for.

The billionaire authoritarians and their toadies believe their hour has come. Let’s prove them wrong.

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Remember: The Cost of Forgetting

History shows us that societies that fail to honestly confront (and teach their children about) their darkest chapters are, more often than not, doomed to repeat them. Germany’s unflinching confrontation with its Nazi past—through education, memorials, and legal accountability—stands in stark contrast to Japan’s reluctance to fully acknowledge its wartime atrocities, or to America’s halting efforts to address our legacy of slavery (and the ongoing “Lost Cause” Confederate mythos) as well as the (ongoing) genocide against this continent’s Indigenous peoples.

The consequences of this collective amnesia are all around us, from the Confederate flags on January 6th to the new efforts to strip science and history from our schools. When we fail to teach children about the horrors of the Holocaust, for example, anti-Semitism resurges. When we allow Confederate monuments to stand unchallenged, white nationalism finds fertile ground. When we call January 6th “legitimate political discourse” (as multiple Republican elected officials have done) rather than the attempted coup that it was, we prepare the soil for the next, potentially successful insurrection.

Memory is not passive; it’s an active, ongoing process, because it’s the foundation of our present and shapes our future. As philosopher George Santayana famously noted, “Those who cannot remember the past are condemned to repeat it.”23 But just remembering isn’t enough: we must draw the right lessons, form the true conclusions, and pass along the honest truths to our children from history.

The most dangerous form of forgetting isn’t complete amnesia, it’s sanitization, where historical atrocities are stripped of their horror and repackaged as noble struggles (as is being done today and has been done for over a century around the Civil War) or unfortunate mistakes (like the way we deal with the lies that led us into Vietnam, Iraq, and Afghanistan). We see this in “conservative” attempts to rebrand the Confederacy as a fight for “states’ rights” rather than to preserve slavery, or in textbooks, stories, and even movies and TV shows (remember the westerns of the mid-twentieth century?) that minimize the genocide of Native Americans as an “unfortunate” consequence of “westward expansion.”

I remember well back in the 1980s when we’d moved to Atlanta from New Hampshire, our first time living in the South. Over dinner one night I asked our son, then in public elementary school, what he’d studied in school that day. “We learned about the War of Northern Aggression,” he told Louise and me to our slack-jawed amazement.

This selective amnesia and its promotion across our nation’s social and political culture isn’t accidental. It’s a deliberate strategy by the beneficiaries of white supremacy and genocide to avoid accountability and perpetuate the systems that help them retain their own power. As journalist Jelani Cobb notes, “When we speak of history, we’re not speaking about what happened in the past. We’re talking about who has the power to define what happened.”24

Authoritarian movements understand this power all too well. Their first target is almost always historical truth, banning books, removing “uncomfortable” topics from school curricula, and attacking archives and academic freedom. The world saw it in Germany, Spain, Italy, and Japan in the run-up to World War II, and is seeing it now in Russia, Hungary, and—tragically—here in the United States. They know that controlling the past is essential to controlling the future. As Hitler wrote in Chapter 10 of Mein Kampf, “The victor will never be asked if he told the truth,” and as he later said in a 1935 speech at the Reichsparteitag, “He alone, who owns the youth, also seizes the future.”

Resisting this erasure requires commitment to what I learned when I lived there in the 1980s, what modern-day Germans call Erinnerungskultur: a “culture of remembrance” that actively preserves memory of historical crimes and treats them not as ancient history but as living warnings. This includes

· Creating and preserving memorials to historical atrocities

· Supporting honest education about our darkest chapters

· Recording and amplifying the testimonies of survivors and witnesses

· Establishing truth and reconciliation processes

· Holding perpetrators accountable regardless of time elapsed

As Holocaust survivor Elie Wiesel reminded us, “For the dead and the living, we must bear witness.”25 And we must bear that witness not to wallow in guilt, but to make absolutely sure that “never again” is a lived reality instead of just an empty slogan.

The American experiment has always been, at multiple levels, a contradiction: founded on principles of freedom while practicing slavery, promising equality while enforcing segregation, celebrating democracy while denying the vote to millions. But what has kept our American experiment—the first in the history of the civilized world—alive is our willingness, however halting and imperfect, to confront these contradictions and nonetheless (or even because of them) strive toward that more perfect union that our Constitution’s preamble promises.

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